Reflections on the Law of War (International Humanitarian Law)

Reflections on the Law of War

International Humanitarian Law Series VOLUME 17 Editors-in-Chief Professor Christopher Greenwood Professor Timothy L.H. McCormack Editorial Advisory Board Professor Georges Abi-Saab H.E. Judge George H. Aldrich Madame Justice Louise Arbour Professor Ove Bring Professor Antonio Cassese Professor John Dugard Professor Dr. Horst Fischer Dr. Hans-Peter Gasser Professor Leslie C. Green H.E. Judge Geza Herczegh Professor Frits Kalshoven Professor Ruth Lapidoth Professor Gabrielle Kirk McDonald H.E. Judge Theodor Meron Captain J. Ashley Roach Professor Michael Schmitt Professor Jiri Toman The International Humanitarian Law Series is a series of monographs and edited volumes which aims to promote scholarly analysis and discussion of both the theory and practice of the international legal regulation of armed conflict. The series explores substantive issues of International Humanitarian Law including, – protection for victims of armed conflict and regulation of the means and methods of warfare – questions of application of the various legal regimes for the conduct of armed conflict – issues relating to the implementation of International Humanitarian Law obligations – national and international approaches to the enforcement of the law and – the interactions between International Humanitarian Law and other related areas of international law such as Human Rights, Refugee Law, Arms Control and Disarmament Law, and International Criminal Law. The titles in this series are listed at the end of this volume.

Reflections on the Law of War Collected Essays

by

Frits Kalshoven

LEIDEN • BOSTON 2007

Printed on acid-free paper. A c.i.p. record for this book is available from the Library of Congress.

isbn: 978 90 04 15825 2 © 2007 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Hotei Publishers, IDC Publishers, Martinus Nijhoff Publishers and vsp. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers ma 01923, usa. Fees are subject to change. Cover photograph © anp, The Netherlands. printed and bound in the netherlands.

Table of Contents

Preface PART 

ix WARFARE: THE ACTORS, THE LAW

Chapter  The Setting Chapter  Introduction to the Law of Warfare PART 

  

REAFFIRMATION AND DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW



Chapter  The Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts,  May -  June, 



Chapter  The Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Second Session),  May -  June, 



Chapter  The First Session of the Diplomatic Conference on Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva,  February -  March 



Chapter  Applicability of Customary International Law in Noninternational Armed Conflicts



Chapter  The Conference of Government Experts on the Use of Certain Conventional Weapons, Lucerne,  September -  October, 



Chapter  The Conference of Government Experts on the Use of Certain Conventional Weapons, Second Session, Lugano,  January -  February, 



vi

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Chapter  The Diplomatic Conference on Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva,  - 



Chapter  The Netherlands and International Humanitarian Law Applicable in Armed Conflicts



Chapter  Development of Customary Law of Armed Conflict



PART 



MEANS AND METHODS OF WARFARE

Chapter  Grotius’ Jus in Bello, with Special Reference to Ruses of War and Perfidy



Chapter  Incendiary Weapons: Legal and Humanitarian Aspects



Chapter  The Soldier and his Golf Clubs



Chapter  Conventional Weaponry: The Law from St. Petersburg to Lucerne and Beyond



Chapter  The Conventional Weapons Convention: Functions of Underlying Legal Principles



Chapter  Prohibitions or Restrictions on the Use of Methods and Means of Warfare in the Gulf War,  - 



Chapter  The Protection of Cultural Property in the Event of Armed Conflict within the Framework of International Humanitarian Law



Chapter  Bombardment: From “Brussels ” to “Sarajevo ”



PART 



COMBATANTS, CIVILIANS, GUERRILLA FIGHTERS, TERRORISTS

Chapter  The Position of Guerrilla Fighters under the Law of War



Chapter  “Guerrilla” and “Terrorism” in Internal Armed Conflict



Chapter  Guerrilla and Humanitarian Law:An Introduction



Chapter  Assistance to the Victims of Armed Conflicts and Other Disasters



Chapter  Non-Combatant Persons: A Comment to Chapter  of the Commander’s Handbook on the Law of Naval Operations 

Table of Contents

vii

Chapter  Enemy Merchant Vessels as Legitimate Military Objectives



Chapter  “Enemy Combatants” in American Hands: Are There Limits to the President’s Discretion?



PART 



COMPLIANCE AND ENFORCEMENT

Chapter  Implementation and Enforcement of International Humanitarian Law



Chapter  Instructions for the Armed Forces



Chapter  Individual Right to Claim Damages under Article  of Hague Convention IV: Expert Opinion, 



Chapter  Individual Right to Claim Damages under Article  of Hague Convention IV: Supplementary Expert Opinion, 



Chaper  The Undertaking to Respect and Ensure Respect in all Circumstances: From Tiny Seed to Ripening Fruit



Chapter  Will International Humanitarian Law Protect Tomorrow’s War Victims?



PART 



REPRISALS AND FACT-FINDING

Chapter  Reprisals in the CDDH



Chapter  Belligerent Reprisals Revisited



Chapter  The International Humanitarian Fact-Finding Commission: Its Birth and Early Years



Chapter  Reprisals and the Protection of Civilians: Two Recent Decisions of the Yugoslavia Tribunal



Chapter  The International Humanitarian Fact-Finding Commission: A Sleeping Beauty?



Chapter  The International Humanitarian Fact-Finding Commission Established by the First Additional Protocol to the Geneva Conventions



PART 



HUMANITARIAN LAW AND HUMAN RIGHTS

Chapter  Protocol II, the CDDH and Colombia



viii

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Chapter  State Sovereignty vs. International Concern in Some Recent Cases of the Inter-American Court of Human Rights  Chapter  The Qualification of Specific Situations as International Armed Conflict



PART 



HUMANITARIAN LAW AND CRIMINAL LAW

Chapter  Some Observations on the Road to Rome



Chapter  From International Humanitarian Law to International Criminal law



PART 



HUMANITARIAN LAW AND NEUTRALITY

Chapter  Neutrality Law



Chapter  Impartiality and Neutrality in Humanitarian Law and Practice



Chapter  International Humanitarian Law and Violation of Medical Neutrality



Chapter  Legal Aspects of “Medical Neutrality”



Chapter  Freedom of Navigation and Neutrality in the Gulf War,  - : The Dutch and Belgian Mine-hunting Activities PART 

SUMMING UP



Chapter  The Centennial of the First International Peace Conference: Introduction



Chapter  Motion of Thanks



Index



Preface

This volume offers a selection of the papers I wrote in the course of these last 35 years. The first year, 1971, was significant in that it brought my work on “Belligerent Reprisals” to an end and at the same time marked the beginning of a decade of active involvement, as an expert for the Netherlands Government and Red Cross Society, in the “reaffirmation and development” of international humanitarian law (IHL). I have written about this process from the outset, resulting in a series of articles in the Netherlands Yearbook of International Law. Numerous other occasions arose then and later when I was invited to put my ideas on paper on a wide diversity of subjects in the sphere of IHL: for conferences, libri amicorum, or similar collective efforts. Rather than listing the papers in chronological order, I have divided them over parts covering more or less broad areas of the law of armed conflict. After an introductory part and a second one that reflects my long-standing involvement with “reaffirmation and development”, follow two parts on topics of substantive law: one (Part 3) on so-called Hague or battlefield law, i.e. the part of the law of armed conflict that governs actual warfare and the choice of weapons; and the other (Part 4), a mixture of Hague and Geneva law, the latter having to do more particularly with respect and protection of persons in an enemy’s power. I should add that Hague and Geneva law may be fundamentally distinct in their approach to war but at the same time, as members of the family of “law of armed conflict” are as closely related as dizygote twins can be. Parts 5 and 6 concern issues of implementation, including two that from the outset have been at the centre of my attention: reprisals (as the ultimate but harmful and unreliable remedy in the face of intolerable violations) and factfinding (as the potential but to this day ineffective alternative to reprisals). There follow papers on the relations of IHL with the fields of human rights (since the 1940s, Part 7), criminal law (since the 1990s, Part 8) and neutrality (since time immemorial, Part 9). And the papers in the closing Part 10 mark two events of particular importance in my personal life: one, the celebration of the Centennial of the Hague Peace Conference and the other, the award of the Henry Dunant Medal. Two comments are in order. I am only too well aware that bringing together in one volume, papers on the same or very similar subjects may from time to time give the reader a déjà vu sensation. This could have been forestalled by drasti-

x

Preface

cally rewriting or deleting parts of the papers concerned. I have decided not to do this and present the papers as published (minor editorial changes apart). The purpose, after all, was not to produce a new book about the law of armed conflict but a volume containing papers that had (or, in rare instances, had not) seen the light before. The other comment concerns the structure of most of my papers. I was educated in the civil law tradition, with a heavy accent on the written law and its history. Whereas my Dutch domestic law training involved going back to Roman and Germanic law origins, in my work on IHL the second half of the nineteenth century has come to figure as my starting-point. I have always been, and remain, convinced of the need to be aware of, and honour, the element of historical continuity in the “reaffirmation and development” of the laws of war. It behoves me, finally, to thank all those who granted me permission to republish papers they had published earlier. And a special word of gratitude goes to Brill Academic Publishers and to Lindy Melman in particular, for publishing this book as the harvest of a 35-year period of writing. It was a great pleasure to co-operate with her throughout the period of its actual production. FK Wassenaar

PART 1 warfare: the actors, the law

Chapter 1 The Setting*

1 The Theatre Imagine a huge theatre: outside, posters indicate that the play “International Affairs” is being performed. It is a very successful play and has been running in the same theatre for years – as knowledgeable people at the entrance are eager to inform the newcomer, perhaps even since the Peace of Westphalia. Once inside, our newcomer is overwhelmed by the sheer immensity of the stage and the complexity of the spectacle. He observes a great turmoil of actors of all shapes, sizes and colours, who are moving about in all directions; some of them are shouting, gesticulating wildly, brandishing weapons in the face of apparent opponents, or even engaging them in outright combat; others can be seen crouching in dark corners where they whisper conspiratorially, whilst others again sit immaculately dressed at highly polished round tables, with a microphone and a little flag in front of each of them. As a general impression, it strikes the eye how much violence is going on among the actors, sometimes in sudden outbursts that subside almost as soon as they started, at other times as an apparently permanent feature of long drawn-out conflicts. After a while, the onlooker becomes aware that the stage accommodates not one but a great many more or less separate plays. They are being performed simultaneously, with many of the actors having a part to play in any number of these separate plays. One actor may be performing a variety of roles in different plays at the same time, and one notes with dismay that these roles are often enough remarkably contradictory if not mutually irreconcilable. As if this were not enough, the set of characters involved in each particular play tends to change with time, as new players join the set (without necessarily giving up their parts in other plays) while other actors abandon a role for a more profitable one elsewhere, or, rather less respectably, are more or less forcefully removed from the set. At first, the spectacle leaves one utterly confused: the play called “International Affairs”, so one feels, is more thoroughly chaotic than anything we could ever have imagined. After a while, the chaos becomes less total, and the actors less

*

Published earlier as Chapter I of Arms, Armaments and International Law, 191 Recueil des Cours (1985-II) pp. 187-341, Hague Academy of International Law, 1986.

4

Chapter 1

independent, than the initial impression seemed to indicate. One notes an intricate web of more or less clearly visible threads, linking all the actors on the stage and thus creating a situation best described as “interdependence”. Moreover, the longer one observes the spectacle, the more certain more or less constant patterns of behaviour are discerned, apparently in application of generally accepted standards; and at other moments one notes how formal arrangements are being drawn up among groups of actors, apparently designed to regulate their conduct with respect to particular situations. Look around you, at the rest of the public filling the house. It is an immense crowd, and growing every minute: it is the millions and millions of other individuals who together with us constitute the world population, or mankind. In actual fact, these people are what the play on the stage is all about. It comes therefore as something of a surprise that they are not to be found among the actors on the stage and obviously have to be content with a passive position as onlookers. At times, though, like in modern theatre, groups of individuals may be seen to be drawn into the action, especially when it becomes violent – and as noted earlier, this happens with alarming frequency. And the actors – who are they, do we recognize any of them? One thing is immediately apparent: they are a remarkably disparate set of characters indeed. As we entered the theatre with the specific purpose to study the subject of arms and armaments in international law, our attention was drawn in the first place by those actors who carry or actually use weapons. No doubt they contribute considerably to the liveliness of the show; equally unmistakably, they make it a more risky affair, both for themselves, their co-actors, and the public.One group of weapon-bearing actors appears to be particularly eminent: it is a group of territorially defined, generally long-lived entities, referred to as “States”. They make themselves conspicuous by shouting incessantly that they are the only truly independent actors on the stage. As members of the club of weapon-bearers they are not alone, though: in this club they find themselves rubbing shoulders, so to speak, and often to their annoyance, with an ever-changing list of armed groups professing to fight for this, that, or the other cause. The latter actors, usually far more short-lived than States and unmistakably of lesser importance on the world stage, are variously labelled as insurgents, resistance fighters, liberation forces, separatists, bandits, terrorists, or any other suchlike name. This does not exhaust by far the list of categories of actors on the stage. A great many of them, and indeed their majority, do not possess weapons at all, and neither do they apparently desire to acquire these. Among the multitude of non-weapon-bearers, the tableau de la troupe has in recent times been enormously extended and enriched by the entry of an impressive procession of actors indicated as international organizations. On closer inspection, they belong to two separate categories, according as to whether they are of the governmental or nongovernmental variety. The growing list of organizations of the first or governmental type includes some such as the near universal United Nations Organization

The Setting

5

(UNO), or the World Health Organization (WHO), that cannot fail to impress by their dimensions and scope; beside these major organizations, other ones may be noticed that are far smaller or have more narrowly defined purposes, such as – to give just a few random examples – the European Organization for Nuclear Research (CERN), the International Telecommunications Satellite Organization (INTELSAT), the Organization of Petroleum Exporting Countries (OPEC), and the Conference on Disarmament (CD). Then, besides the governmental organizations, there is the even longer and more rapidly growing list of non-governmental organizations; it includes such prestigious names as the International Committee of the Red Cross (ICRC), Amnesty International, and the Stockholm International Peace Research Institute (SIPRI). Although a few of these international organizations, both of the governmental and non-governmental type, will be mentioned in subsequent chapters, they will not as a class hold pride of place in our story. The explanation is simple: among all the actors on the stage, they are the ones least prone to wielding the axe. In our piece, the star part remains therefore reserved for the actors described earlier, who habitually carry weapons or take up arms for some cause; and most prominent among these candidates for stardom are the States. 2 The Main Actors: The States Let us have a somewhat closer look at these centres of territorially defined power called States. It strikes the eye that the term encompasses entities which from a purely factual point of view are more conspicuous for their dissimilarities than for their similarities. Thus, if one only pays attention to factors such as size and power, it may surprise one to find besides a long list of very small “miniStates” such as Barbados, Botswana, Fiji and Liechtenstein, other entities that are quite colossal, such as Brazil, China, the Soviet Union and the United States of America. While this may provide one with much food for thought and the political scientist may never get over his wonder, the international lawyer must learn to accept, no matter how reluctantly, that all these entities called “States”, in spite of their glaring dissimilarities, are recognized as equal in principle and therefore as belonging in one and the same category. What about their claim to independence? Apparently, this is no rash, totally unfounded claim: among all actors on the world stage, States stand out as the only ones whom the law recognizes as independent masters of their own affairs, not subject to any superior authority. They are referred to as equal members of the international community, their territorial integrity and political independence are stated to be inviolable, theirs is the inherent right of self-defence; they alone, in short, enjoy the rights inherent in full sovereignty. 1

UN Charter, Arts. 2(1), 51; Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the

6

Chapter 1

To what extent this asserted independence and full sovereignty provide a true reflection of the actual state of affairs is a question that may be left unanswered. Allusion was made already to the innumerable ties that link States both among themselves and with other actors on the stage of world affairs, and to the standards they respect and arrangements they conclude in the conduct of their international affairs. All of this unmistakably amounts to as many restraints on their asserted freedom of action. Reference was also made to the United Nations, as the single most truly universal international organization in existence. But – it has been said a thousand times and yet needs to be repeated here once again: neither the United Nations nor any other international organization has acquired a status even remotely resembling that of a world government and, hence, of sovereignty. Both the United Nations Charter and a long series of resolutions emanating from its main organs do not cease to insist that States are sovereign – and that the United Nations, by implication, are not. In particular, although one of its main organs, the Security Council, holds powers that are connected with the use of force, even the system of collective security as established by the Charter has never purported to deprive the States of their right to maintain armed forces (a theme which we shall develop somewhat further shortly). And this right logically includes the right to acquire and deploy weapons – as States have done at all times and are doing to the present day, for a wide variety of purposes. 3

Purposes of Armaments

Let us look briefly at these diverse purposes inducing States to acquire armaments. Without any attempt at exhaustive description, two sets of purposes may be distinguished at the outset: those connected with the internal affairs of the State, and those connected with its international affairs. It should be immediately added that this distinction may become blurred in practice, e.g., when a display of armed force against internal opposition finds forces coming from the exterior crossing its path. The reasons why a State may wish to acquire and deploy weapons in connection with its internal affairs cover a wide range of needs, from the purely ceremonial (think of events like “changing the guard” or “trooping the colour”) to the desire to emphasize the national identity or protect the unity of the nation, not to mention other more down-to-earth reasons such as the desire of a governing elite to maintain its power position in the face of a determined opposition or revolutionary movement. For any of these reasons, States are found to maintain organizations under various names, such as police forces, security forces, paramilitary forces, or armed Charter of the United Nations (Annex to UNGA res. 2625 (XXV), adopted 24 Oct. 1970): “The principle of sovereign equality of States”.

The Setting

7

forces. As far as international law is concerned, the names by which these organizations are indicated are immaterial: the problems potentially attending their modus operandi and use of weapons in respect of internal events are the same in all cases, and may be classed under such headings as constitutional law, criminal law, human rights law or, as the case may be, international humanitarian law applicable in internal armed conflicts. Turning next to the externally oriented acquisition and utilization of weapons, it is not difficult to distinguish a similarly broad range of purposes. There is, first and least dangerous of all, the ceremonial firing of guns as a salute to a foreign Head of State. Always on the ceremonial level, we find the visit a warship pays to a foreign port, perhaps to contribute by its presence to the pomp and circumstance of an anniversary being celebrated in the foreign country. Here some caution is already required, though: an ostensibly entirely peaceful presence in port may in reality have a totally different character. Quite conceivably, the visit is in effect designed to give a demonstration of strength and thereby bring pressure to bear on the authorities of the country concerned. Suchlike purposes may of course be pursued with an appearance of other branches of the armed forces as well. Even the ostensibly purely ceremonial grand parade, held in the capital of the State on national day, may serve the purpose of demonstrating the redoubtable strength of the country and thereby discouraging other States from any rash behaviour. Besides ceremony, political pressure and deterrence, there is, last but not least, the protection of the State’s interests and those of its nationals. Examples of this purpose abound: one may think of the naval or air patrol protecting the fishery interests of the State in its territorial sea or exclusive economic zone, or of a right of visit and search being exercised in a contiguous zone in order to prevent smuggling or unlawful entry; or, again, to cite a famous instance, of the passage of a few warships through an international strait to preserve the right of innocent passage. More often than not States confine themselves to such a simple and relatively harmless display of their weapons on the world stage, without so much as a shot fired. Unfortunately, this is not the whole story: time and again, now this, now that State takes recourse to a more active use of its weapons, in order to forcefully pursue given political ends. Examples of such political ends, as evidenced by State practice, include the acquisition of territory, support to a separatist movement in a foreign country, or even the outright elimination of a foreign regime. Then again, the other way round, the task on hand may be the defence of the country against foreign invaders. No matter how named, any of these modes of actual use of weapons may immediately or ultimately involve a State in war. Obviously, it is events of this type which more than anything else result in large numbers of the public in the theatre losing their status as peaceful onlookers and 2

The Corfu Channel case, ICJ Reports 1949, p. 4.

8

Chapter 1

finding themselves dragged onto the stage as participants in the deadly game called war. Two points should be noted. First, the dividing line between display and actual use of weapons may be very thin in some cases. When a State contracts a formidable army near the border with another State and accompanies this manoeuvre with insistent demands for a change of policy of the latter State, this display of arms may perhaps, technically speaking, amount to no more than a demonstration or at most a threat of force. Yet when one looks at the effect, this mode of acting may be hard to distinguish from the actual transgression of the border or the march on the capital: in either case, it is the deployment of overwhelming military power which entails the desired result. The other point is that this brief and necessarily incomplete description of possible uses of weapons was merely meant to serve as a factual basis for our discussion of armaments and international law; quite obviously it had no bearing whatsoever on the question of the legality or illegality of such modes of use. Needless to say, rules of international law have come to curb States in their freedom of action where the use of armed force is concerned: e.g., rules limiting recourse to force to recover contract debts or making outright recourse to war more difficult; a contractual agreement mutually to renounce “recourse to war for the solution of international controversies” and, finally, the rule in Article 2(4) of the Charter of the United Nations, which for all practical purposes outlaws the threat or use of force in inter-State relations. 4

Collective Security

Article 2(4), laying down that force may not be threatened or used “against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations”, opens a series of provisions establishing the Charter system of collective security. Let us assume for a moment that this system had become entirely effective and remained so these last 40 years: would this have affected the proneness of States to acquire weapons to any significant extent? The answer to this question is probably a qualified “yes”. Admittedly, even under that system the Security Council would not have acquired its own armed forces: rather, according to Article 43 of the Charter, it would be capable, whenever “necessary for the purpose of maintaining peace and security”, to call on armed forces held available by member States in accordance with special agreements, negotiated and concluded between them and the 3 4 5

Hague Convention II on the Limitation of the Employment of Force for the Recovery of Contract Debts, of 1907 (the so-called Porter Convention). Art. 12 of the Covenant of the League of Nations. General Treaty for the Renunciation of War as an Instrument of National Policy, of 1928 (the so-called Briand-Kellogg Pact).

The Setting

9

Security Council for that purpose. And its capacity to discharge its functions would be enhanced by the active assistance of the Military Staff Committee, established under Article 47 and consisting of the Chiefs of Staff of the permanent members of the Security Council – or their representatives, theArticle adds somewhat lamely, recognizing that the Chiefs themselves could hardly be expected to be permanently present at United Nations Headquarters. But undoubtedly, in times of emergency, we would see them rushing to New York, eager to throw in their full weight for the maintenance or restoration of international peace and security. Doubtless, moreover, the Military Staff Committee would over the last 40 years, in accordance with Article 47(1), have actively advised and assisted the Security Council “on all questions relating to … the regulation of armaments, and possible disarmament.” This would in turn have enabled the Security Council, in fulfilment of its mandate under Article 26, to formulate “plans to be submitted to the Members of the United Nations for the establishment of a system for the regulation of armaments.” Again, the overall improvement of the situation on the world stage would certainly have resulted in a lesser need for armaments on the part of member States. But it should be emphasized that even under the assumption of a Charter system of collective security realized to perfection, and therefore entirely effective, the system is and remains based on the existence of national armed forces. Besides being at the disposal of the Security Council, another manner in which such national armed forces could be legitimately used would always be, in terms of Article 51 of the Charter, “individual or collective self-defence if an armed attack occurs … until the Security Council has taken measures necessary to maintain international peace and security.” Even with the best conceivable preparations and the most effective assistance on the part of the Military Staff Committee, there would probably be a gap of a day or so between the moment a State is attacked and the moment the measures of the Security Council “to maintain international peace and security” become operational. To fill that gap in their external security States might conceivably still wish to maintain adequate armed forces. Then, besides external security there would have remained the requirements of internal security. At the time the United Nations Organization was established, the international community consisted of some 50 to 60 States. Quite a few of these States had considerable “law and order” problems within their territories: thus, the Netherlands in the Dutch East Indies, France in its overseas departments, the United Kingdom both overseas and in Northern Ireland, and so on and so forth. Despite recognition of the principle of self-determination in the Charter, such problems were regarded as internal affairs by the States concerned, and they would therefore certainly have maintained and utilized important military effectives to deal with the situation.

10

Chapter 1

In the course of the decolonization process as it actually occurred the onetime colonies and other non-self-goveming territories were gradually recognized to possess a status of their own, and “wars of national liberation” came to be recognized as international armed conflicts in the sense of the Geneva Conventions of 1949 and the Additional Protocols thereto of 1977. Would it not have been extremely interesting to see our hypothetical, more perfectly organized international community cope with such a process of violent change! And there would have been other extremely difficult processes awaiting it, such as (to mention only one striking example) the creation of the State of Israel. Regrettably, all this remains idle speculation as the international community failed to bring the Charter system of collective security into full effect. As another lecturer, Dr. Herndl, will treat in detail the “Role, Functions and Procedure of the Security Council”, I need not pursue this matter any further. In the context of these lectures, it suffices to take note of this failure on the part of the world community and, with that, the revival (or should one say the survival) of the need for States to provide for their own security in a less than totally safe world. 5

National Security

States have continued to make this kind of provision for bad times after as before the establishment of the United Nations Organization: they never stopped acquiring and displaying weapons, as the implements their armed forces need, or say they need, in order to meet the challenges of the present or the future. Now, one aspect where the legally equal States are conspicuously unequal in fact is in their military capacities. While one State, possibly an island State located peacefully somewhere in the middle of the Pacific Ocean, may have no more than a minuscule, lightly armed police force, other States, not so favourably situated, spend tremendous effort and resources on the build-up and constant modernization of ever larger and more powerful armed forces equipped with every available weapon, from the foot-soldier’s rifle and hand-grenade to the intercontinental ballistic missile carrying a number of independently targetable re-entry vehicles, each equipped with a nuclear warhead. 6

7

Declaration on Principles (supra, note 1): “The principle of equal rights and selfdetermination of peoples”, para. 6: “The territory of a colony or other non-selfgoverning territory has, under the Charter, a status separate and distinct from the territory of the State administering it.” This recognition came with the adoption of Art. 1(4) of the Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection of the Victims of International Armed Conflicts; the Protocol was adopted in Geneva on 8 June 1977, and opened for signature in Berne on 12 Dec. 1977. For text see: Schindler & Toman, The Laws of Armed Conflicts, 2nd ed. (1981) p. 619; Roberts & Guelff, Documents on the Laws of War (1982) p. 387. On the question of scope of application see further the relevant paragraphs in Chapter V.

The Setting

11

One method by which States may seek to place their perceived security requirements in a rational setting is by matching, individually or in alliance with others, the military power of certain other States or groups of States. While such a “balance of power” policy may have been applied with a modicum of success in nineteenth-century Europe, it has become far more difficult, if not impossible to achieve since. The number of State actors has considerably increased; they are spread over a much enlarged world stage, and they are far more diverse than their predecessors of the previous century in a great many respects, not least in military capacities. Many of the newcomers are still fairly unstable internally. There are, moreover, those other firebrands: the rebels, the insurgents, and their likes, who at least temporarily claim a place among the weapon-bearing actors on the stage. In these circumstances, how should a State calculate its military needs? Then, suppose State A might succeed in achieving a balance of power with State B: will this not have the unfortunate effect of disturbing the previously existing balance between States A and C? Indeed, in many cases this effect appears hard to avoid. Now, to the extent that C attaches importance to the maintenance of this particular balance, it will attempt to restore it, and in most cases this will mean an increase in its military power. This may in turn disturb the balance as it existed between C and D – and so on and so forth. Put differently, if all States took the idea of a balance of power literally and continued to seek such a balance with all other States on a basis of sophisticated calculations, the arms race would predictably be a far more rapid and widespread process than it now already is said to be. It is therefore perhaps as well that States, despite their natural concern about national security, probably do not take the idea of a balance of power quite so literally. The fact remains, however, that in specific bilateral relations the idea of such a balance plays a very important role. One need not only think here of the action-reaction process that appears to govern the relations between the nuclear super-powers, with the introduction of new missiles or strategies on one side immediately being matched by comparable developments on the other side. Also on the relatively more modest scale of conventional weaponry, one observes how some States, and not the major ones alone, are constantly on the watch for even the slightest change in the armament of certain other States whose policies they perceive as threatening. We thus have to acknowledge that although the establishment and buildup of military power may effectuate an increase in the security of a State – or at any rate may diminish its feelings of insecurity – it may at the same time entail a measure of insecurity, or at least of perceived insecurity, on the part of other States. In the discussions accompanying this entire process, these feelings of real or alleged insecurity are sometimes given expression in the shape of the claim that all States have a right to “equal security”. Theoretically this may appear an absolutely impeccable construction: after all, States are equal before the law and therefore should have equal rights, and this should certainly apply where a matter

12

Chapter 1

as vital as their national security is concerned. On the level of practical politics, however, it appears hard to see how in present conditions this pretended right could ever be realized on a world-wide scale. Should one think here of a computer programme, into which would be fed all the relevant data about all the States in the world, including the measure in which they trust or distrust each other? And whose programme would be accepted by the entire world community, so that the outcome of its calculations would be binding on all States and, once almost automatically implemented, would lead to that blissful state of “equal security for all”? Once again, one fails to see how this could ever work. This is to say that those who claim loudest the right probably have nothing else in mind but a legitimation of their own military build-up in relation to some few States, while at the same time completely disregarding the equally legitimate security interests of all other States. Always on the plane of practical politics, our problems are compounded by the observable fact that States do not always confine themselves to pursuing a “balance of power” with this or the other State by merely matching the military power of that State. Often enough they apparently seek superiority over certain States, whether in respect of particular aspects of military power (say: superiority in the air or at sea) or as a general proposition. If this is their aim, or if the other side perceives it as such, an “arms race” becomes very probable if not unavoidable. Undesirable though this may be, the world has time and again witnessed this process of reciprocal military build-up spiralling to ever more alarming heights. 6

An Absolute Ceiling?

How high can the pile of armaments rise without hitting an ultimate ceiling? This question may be contemplated from more than one angle. One might endeavour to determine mathematically where the risk posed by an ongoing arms race becomes unacceptable, or the focus might be on the ethical aspects or the economic consequences of such an arms race. For our purposes, the relevant question is whether contemporary general international law contains a standard which puts an absolute ceiling to the permissible level of armaments. One could envision such a standard in two distinct forms: either in the shape of a mathematical formula (“never more than a thousand guns for any single State”) or in abstract, more normative terms (“never so many arms for any single State that world peace is endangered, or the survival of mankind is seriously, or immediately, threatened”, or any comparable phrase). One is reminded here of what may have been the only serious effort ever made to set such standards. The occasion was the almost forgotten Disarmament Conference of the League of Nations, held in Geneva from 1932 to 1934. Its goal was to arrive at a calculated reduction of the armaments of all (significant) States 8

On the League of Nations Disarmament Conference, see also Chapters II and VI.

The Setting

13

and the abolishment of certain classes of weapon on account of their particularly dangerous character. In the end, with the tragic breakdown of the Conference, all the efforts came to naught; but this cannot detract from the fact that the world was probably never closer to fixing an absolute ceiling to the level of armaments it was prepared to tolerate. As for the present, while an absolute standard either of the mathematical or normative type remains entirely conceivable in theory, it appears that as a matter of actual practice the “international community of States as a whole” has not reached the stage where any such standard could become accepted as a norm of general international law. This negative conclusion is doubtless true for the mathematical formula. And as far as the form-of-words type standard is concerned, it is beyond doubt that the present level of armaments does not only threaten world peace – as weapons have always done – but the survival of mankind as well. While many States evidently regard this situation as undesirable and probably even in the long run untenable (so that “something ought to be done about it”), evidence is lacking that the major groups of States, the most directly interested ones included, would regard the activities by which States maintain or aggravate this undesirable situation as so many unjustifiable infractions of an existing absolute standard of international law. In discussions about these questions one often notes an understandable tendency to concentrate exclusively on nuclear weapons, as the weapons that are widely held to pose a graver threat to humanity than any other type of weapon has ever done before. We shall revert to the special problems involved in the possible use of nuclear weapons and other so-called weapons of mass destruction in Chapter IV, and these weapons shall be central again in Chapter VI on disarmament law. In the meantime, the point should be emphasized that it would be wrong to focus one’s attention on those weapons alone. This is not to deny their particularly terrifying character: it is rather that other, so-called conventional weapons are found in the armaments of virtually all States. And this is not all: conventional weapons are put to actual use with alarming frequency and often particularly horrifying effects in the long series of armed conflicts that characterize our time. This gives us every reason to turn our attention first to the general rules of international law relating to the acquisition, deployment and use of all weapons, large and small. We shall find that States have over the years accepted a number of such rules. Whether in the shape of vague principles or precise prohibitions,

9

The phrase utilized in Art. 53 of the Vienna Convention on the Law of Treaties, of 1969, to indicate the wide spectrum of States whose recognition is required to turn a rule of international law into a “peremptory norm of general international law … from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

14

Chapter 1

they curb States more or less effectively in their unqualified freedom to do as they like in the matter of armaments. In part, these rules grew in practice; for the greater part, they were consciously created as treaty law. One way or the other, they cover a wide range of issues that may be classified under several headings. Four such headings are often distinguished: jus ad bellum, jus in bello, victor’s law, and disarmament law. In the foregoing, we already made some brief remarks about jus ad bellum, i.e., the rules governing recourse to force by States in the conduct of their international relations. We shall not revert to this aspect of the matter. Jus in bello, or the “rules of international law applicable in armed conflict” we shall examine carefully and in some detail, with particular focus on the principles and rules governing wartime use of weapons. In order to gain a better understanding of these principles and rules we shall trace their historical development up to and including the lawmaking conferences of the 1970s (Chapters II-IV). In the course of this investigation we shall come across one or two instances of so-called victor’s law, or the rules the victor forces upon his vanquished adversary. Questions of scope of application and implementation of the law of armed conflict shall be broached in Chapter V. Finally, in Chapter VI, we shall go into aspects of disarmament law, notably relating to the development, production and deployment of weapons.

10

In terms of Art. 2(b) of Additional Protocol I (supra, note 7): “the rules applicable in armed conflict set forth in international agreements to which the Parties to the conflict are Parties and the generally recognized principles and rules of international law which are applicable to armed conflict.”

Chapter 2 Introduction to the Law of Warfare*

1

Armed Conflict

Violence is one of the striking features of present-day human society. This may be observed in private life, where violent attacks on the person of fellow human beings are as frequent as they are varied; it is equally true of public life, where violence occurs in all forms and at all levels of intensity, ranging from the isolated kidnapping or assassination of single individuals to such large-scale activities involving many, such as the massive bombardment, the tank battle or the siege. In this course, we will be concerned with “warfare”, a notion embracing those forms of public violence which occur in – and are characteristic of – “war”, or as it is usually styled nowadays with an even more neutral term: “armed conflict”. This may be the international armed conflict properly speaking: the conflict between States; or it may be the armed conflict not between States and occurring within the territory of a single State. The third and last possibility is that of the armed conflict waged within the territory of one State and yet, by virtue of certain additional factors, international in character. In the past, wars between States were declared. In 1907, the Second Hague Peace Conference even considered it worthwhile to lay down in a separate convention that hostilities ought not to be opened without previous and unequivocal warning, which could have the form, either, of a reasoned declaration of war, or of an ultimatum with conditional declaration of war. The Second World War duly began in September 1939 with formal declarations of war by the United Kingdom and France against the German Reich. Similar declarations of war were made in the following years of the war by many States. Thus, the Netherlands declared * 1

2

3

Published earlier as Chapter I of The Law of Warfare (1973) pp. 9-29. The spreading of terrorism in 1972 caused the UN General Assembly to take an interest in the matter. See inter alia the Draft Convention for the Prevention and Punishment of Certain Acts of Terrorism, introduced by the United States (A/C.6/ L.850, 25 Sept. 1972) and the study prepared by the Secretary-General (A/C.6/418, 2 Nov. 1972). For an explanation of this term, see: G. Schwarzenberger, International Law as Applied by International Courts and Tribunals, vol. II: The Law of Armed Conflict (1968) p. 1. Hague Convention No. III.

16

Chapter 2

war on Japan in 1942, at a time when the Japanese armed forces had not yet opened their attack on the isles of the then Dutch East Indies. This even led to an argument on the part of defendants before the International Military Tribunal for the Far East, sitting in Tokyo after the war, that if Japan might have committed aggression, the Netherlands had done so too. This episode already provides one explanation of the unmistakable fact that declarations of war are practically out of fashion nowadays; they all too easily lead to the accusation that the State making the declaration is the aggressor. Another reason is that in many cases States (or, wider, belligerent Parties) will prefer to avoid the consequences which an express declaration of war would entail for their legal relations both with the adversary and with other States. Then, on the factual level, one realizes that, on the one hand, he who wants to commit deliberate aggression will certainly not be prepared to dispense with the element of surprise, and, on the other hand, that war may not be a sudden affair at all but may develop imperceptibly out of a situation of slowly increasing violence. For all these reasons, the present discussion shall not be confined to situations of declared war (or, on the internal level, to the comparable situation where the authorities in power recognize the state of war); it will be concerned with all situations of armed conflict, no matter how named by the Parties involved. For our purpose, “armed conflict” may be defined as a conflict involving hostilities of sufficient intensity between armed forces of opposing Parties. This definition immediately leads to an obvious question: if one does not want to rely exclusively on the subjective positions taken by the Parties to the conflict, what then is the criterion for distinguishing armed conflict from lesser forms of violence? The question dissolves into two further questions: what distinguishes the international armed conflict from the clash of arms in the international border incident or from the mere infiltration of saboteurs and terrorists? And where lies the dividing-line between the non-international armed conflict and mere internal troubles involving resort to force? There are, of course, obvious cases. Nobody will probably doubt for a moment that the Second World War and the Vietnam War were armed conflicts, or that the Paris student revolt of May 1968 did not qualify as such. For the less obvious cases, however, one will have to admit that thus far no exact, objective criterion had been found which would permit us to determine with mathematical precision that this or that situation does or does not amount to an armed conflict. The truth of the matter is that any attempt at greater precision in defining “armed conflict” will be tied up with certain more or less explicit goals of a political or other similar order. Thus, one may come across the argument that, as situation A amounts to nothing more than internal troubles, it is therefore a purely domestic affair not warranting any outside intervention nor constituting 4

Myres S. McDougal and Florentino P. Feliciano, Law and Minimum World Public Order (1961) p. 231.

Introduction to the Law of Warfare

17

a threat to the peace. Or it may be argued, the other way round, that situation B does in fact amount to an international armed conflict and that therefore those taking part in the hostilities, when falling into enemy hands, have the right to be treated as prisoners of war. At the second session of the recent Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, held in Geneva in May 1972, it was very much apparent that many of the definitions proposed for non-international armed conflicts in particular were prompted by considerations of this order. It is thus evident that under existing law decision-makers have considerable latitude in qualifying situations as armed conflicts or otherwise. This does not mean that they would be completely free to label situations as they see fit, without any regard for objective criteria or obvious facts. But it does mean that especially with respect to dubious situations, such as will occur in the initial phase of most internal conflicts, they are left with a wide margin of appreciation. Who are the decision-makers in whose hands lies this power of decision in such an important matter? One can think of various actors here: the Parties to the conflict (who may, but need not, agree about its qualification), or States not directly involved in the conflict (who may have an interest in clarifying their position in respect to it, or who may want to urge the application of certain rules and procedures for its settlement or for the conduct of hostilities). Or one may think of international bodies, such as organs of the United Nations or of regional intergovernmental organizations, or an independent body such as the International Committee of the Red Cross in Geneva. The point is, though, that none of these actors, with the possible but theoretical exception of the UN Security Council, has power to decide the issue with binding effect for the other Parties too. We shall have to accept this fact, as one proof out of many of the imperfect condition of international society. Reference was made more than once in the foregoing to international and non-international armed conflicts and, more specifically, to armed conflicts between States on the one hand and, on the other, those not between States and occurring within the territory of a single State. These two types of armed con5 6

7

Report of the Conference (Geneva, 1972) para. 2.45 et seq. The ICRC has often taken the initiative in urging upon the Parties to an internal armed conflict to in fact consider it so; this on the flimsy basis of common Art. 3 of the Geneva Conventions of 1949 which provides that the ICRC “may offer its services to the Parties to the conflict.” Art. 39 of the UN Charter empowers the Security Council to determine the existence of a threat to the peace, breach of the peace or act of aggression. It seems a moot question, though, that this would include the power to decide that an international or internal situation amounts to an armed conflict, especially as the latter decision would entail totally different legal consequences (entry into operation of the law of armed conflicts) than would result from the earlier decisions.

18

Chapter 2

flict present sufficient similarities to bring them under the one heading of “armed conflict”. In either case, armed forces on both sides take part in hostilities of sufficient significance, and the methods and means of combat used are as similar as the types of victims caused and damage done. It is necessary, though, to realize that the two types of armed conflict are not so completely similar in other important respects. A first such aspect is the legal status of the Parties. In the case of an interstate armed conflict, the Parties are equal. The sovereign equality of States is one of the cornerstones of present-day international relations and international law; it is the first principle mentioned in Article 2 of the United Nations Charter, and one finds it emphasized and elaborated in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, adopted by the General Assembly without dissenting vote on 24 October 1970. In the case of a purely internal armed conflict, however, the legal status of the Parties is usually one of fundamental inequality. The authorities in power are the legitimate Government, and their acts are in defence of legitimacy; their opponents are the insurgents, whose acts will be punishable as rebellion, treason or the like under the municipal law in force. This legal inequality will only disappear to the extent that the insurgents succeed in obtaining from the legitimate Government their recognition as a government or as a belligerent Party – a rare occurrence which moreover can only be expected once the insurgents have achieved something like equality in fact. This factual element is the other aspect that should be mentioned. It has often been said that no two States are equal from a factual point of view. While this may be true, it is equally true that they are all very similar in such essential characteristics as power structure, possession of a centrally directed armed force, allegiance of the population, and possession of territory, characteristics which play an important role in the event of an interstate armed conflict. Here, again, the difference with the purely internal armed conflict is obvious. While the governmental side in principle has the disposal of the established power structure, including the regular armed forces, while it holds the territory and can claim the allegiance of the population, the insurgents have none of these advantages, that is, not until they have succeeded in consolidating their position to such a degree that they can be said to have achieved the equality in fact referred to a moment ago. In short, while the Parties to an interstate armed conflict start from a position of equality, the purely internal armed conflict is waged between parties starting from a position of inequality. This difference of fact cannot fail to be 8 9 10

As is done in the Geneva Conventions of 1949, Arts. 2 and 3. Res. 2625 (XXV). On the question of recognition of belligerency, see: Roscoe R. Oglesby, Internal War and the Search for Normative Order (1971).

Introduction to the Law of Warfare

19

reflected in the law which international society is prepared to lay down for the two situations. Obviously, the protective shell around States which is named “national sovereignty” is apt to play a far more decisive role in the event of internal armed conflicts than in case of international ones. This results in a tendency to accept less far-reaching rules for the case of internal armed conflicts than may be considered acceptable for international armed conflicts. This tendency may be strengthened further by expectations about the willingness and ability of the parties to either type of conflict to observe more or less detailed rules governing the behaviour of belligerents. It was suggested at the outset of this chapter that there exists an intermediate possibility between the purely interstate and the purely internal armed conflict, viz., the armed conflict waged within the territory of one State and yet international in character. It may be clear from the foregoing that this case will arise, first, when the insurgent party has succeeded in achieving virtual equality with the authorities in power; in that situation, the conflict becomes essentially similar to one between States. The most striking example of this type of situation is provided by the Spanish Civil War of 1937-1939. Outside intervention may be another factor internationalizing an originally internal armed conflict. Here, however, opinions are not unanimous. Some reject the very idea of this effect so completely that they do not even want to recognize it in case of direct, large-scale participation of foreign armed forces. Among those who accept the idea in principle there is a wide diversity of opinion about whether intervention on the side of the insurgents must be attributed the same effect as intervention on the side of the established authorities, and what level of involvement (ranging from mere economic aid to outright military participation) is required to achieve the internationalization of the conflict. Without going into these questions in any detail, and with all due respect for the motives prompting even the extreme points of view (motives which generally will be connected with ideas about the desirability of intervention, whether in general or with regard to a specific situation such as the war in Vietnam), it seems justified for the purposes of the present subject to attribute the aforesaid internationalizing effect to intervention taking the form of direct and significant participation 11

12

13

In the Conferences of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, held at Geneva in 1971 and 1972, this tendency was apparent even in the proposals of those experts who wanted to go furthest in unifying the law applicable in armed conflicts. The Norwegian proposal for one single Protocol was divided in parts applicable to international and to non-international armed conflicts; Report of the 1971 Conference, p. 61: Doc. CE/COM II/1, 2; Report of the 1972 Conference, paras. 0.15, 5.22. See Ann van Wynen Thomas and A.J. Thomas, Jr., “International Legal Aspects of the Civil War in Spain”, in Richard A. Falk (ed.), The International Law of Civil War (1971); see also Oglesby, op. cit. See Report of the 1972 Conference of Government Experts, para. 2.342 et seq.

20

Chapter 2

of foreign armed forces, as that will incontestably deprive the armed conflict of its original character as a purely intestine affair. It is asserted from many sides nowadays that there is a third category of noninterstate yet international armed conflicts, viz., wars of self-determination or national liberation. Those who advocate this idea, and the many UN resolutions they can quote in their support, envisage here in particular the armed struggles against colonialism and racism. Their arguments are that self-determination has developed since 1945 into an unquestionable right, that colonialism and racism are contrary to the very principles of the United Nations, that territories under colonial or racist domination have a separate status (as has been expressly recognized in the quoted UNGA Declaration on Friendly Relations) and that the colonial and racist regimes must in truth be regarded as illegal occupants and virtual aggressors. The present author does not for a moment doubt that the struggles in question, and the situations underlying them, are matters of international concern. It is also evident that the struggles, though taking place within a single territory, involve groups of persons which on no account can be considered as one nation. Here, however, the parallel with interstate armed conflicts comes to an end. At any rate in its initial phase, the struggle for self-determination will present at best the factual characteristics of an internal armed conflict, that is, if it qualifies as an armed conflict at all. In this light, it seems of questionable usefulness to stick a label of “international armed conflict” on these struggles as long as they have not acquired the characteristics thereof, that is, as long as there is no question, either, of anything like equality in fact between the Parties, nor of any significant outside participation. To give a few examples, the struggle of the Indonesian people against the Netherlands, in the years immediately following the Second World War, can be said to have constituted an international armed conflict virtually from the beginning, and the Algerian war likewise must be regarded as an international armed conflict, at all events during its later phases. But to characterize the situation in Angola as an international armed conflict might in 1972 still be somewhat premature. Be this as it may, our conclusion is that there exists a category of armed conflicts which, although not interstate, is international in character. This obviously complicates the picture, if only because the existing international legal instruments either expressly or implicitly are based on a dichotomous distinction between purely interstate and purely internal armed conflicts. The absence of an international authority having power to determine with binding force the character of a given conflict is particularly conspicuous here.

14

Ibid., paras. 2.35 et seq., 4.222; and see Georges Abi-Saab, “Wars of National Liberation and the Laws of War”, in Annales d’Etudes Internationales (1972) p. 73.

Introduction to the Law of Warfare

21

2 Warfare After the above brief expose of the various problems inherent in the notion of armed conflict, we may next focus our attention on the concept of warfare, as the type of activity characteristic of armed conflict. It was pointed out at the outset of this chapter that warfare embraces resort to violence. Indeed, this is the most conspicuous aspect of warfare and the one most likely to stick in the memory. European history is replete with the stories of famous battles fought on land, at sea and, in recent history, in the air. And this is not merely a matter of the interests of historians: the very idea of armed conflict implies a prominent place for the military operations of the armed forces. It should be realized, though, that warfare is not confined to this aspect of military operations. Another equally traditional component of warfare consists in the logistical support provided by the population. This factor was as important in the naval wars waged between the Dutch and the British in the 17th century as it was in a war like the Second World War. It is true however that the industrial revolution of the 19th and 20th centuries has given added weight to the role which industry plays in warfare. One can think here of industrial capacity in terms of production of arms and ammunition, of complete weapon systems such as war planes or tanks, and of other indispensable goods such as fuel. Another modality of industrial warfare may be seen in the perfection of existing, and the development of new, means of combat. It must be emphasized once again that this is no novel role of industry; it has merely assumed far greater proportions in our days than ever before. Add to this the enormously increased measure of Government control of wartime industrial activities, and it will be agreed that this aspect of warfare can without exaggeration be referred to as “industrial warfare”. It should be pointed out that this notion is wider than the often-heard term of “technological warfare”; the latter term, coined especially in reaction to certain features of the war in Vietnam, envisages in particular the perfection and development of weapons and other means of combat. Economic warfare is an even wider notion, though narrowly connected with that of industrial warfare. The term is normally used to indicate all those measures the aim of which is to impair the economic capacity of the adversary, especially in so far as this affects his capacity to sustain the war effort. Economic warfare can consist in measures aimed at cutting off the supply, e.g., of arms and other items of direct military importance, or of raw materials and other goods indispensable for the war industry. It can assume the form of attacking the economic and financial position of the adversary on foreign markets. It embraces such military operations as direct attacks on the enemy war industry or a blockade of the enemy harbours or coasts. It is, in short, a broad concept encompassing 15

On the developments in war and warfare, see: Quincy Wright, A Study of War, 2nd ed. (1965).

22

Chapter 2

a whole range of possible steps, and it is an important element in any protracted armed conflict. While economic warfare did not decide the Second World War, it contributed considerably to its outcome. Especially such military operations as attacks on industrial targets and blockade tend to assume a different significance as well: they may easily become elements in what is indicated as psychological warfare. This, again, is far from being a novel concept. In the era when Romans and Teutons fought their savage battles, it was customary for the barbaric Teutons to accompany their actions with great clamour of voices and to give themselves a terrifying look with the aid of bull’s horns or similar attributes. Also more gentle methods of psychological warfare, such as the ultimatum and other forms of pressure, or bribery, have been known throughout history. None of these methods has so far lost its topicality. One aspect which unfortunately has acquired increased significance in recent times consists in the tendency to bring pressure to bear on the enemy civilian population with the aim (or in the hope) of thus influencing the course of the war. The bombardment of London, in 1940, had this aim of bringing the point home to the British people, and thus indirectly to the British Government, that it would be better to abandon the war. Likewise, the bombardments of Hamburg and Dresden, and the nuclear attacks on Hiroshima and Nagasaki, had among their objects to break the morale of the civilian population. Again, the recent mining of Hai Phong and other harbours in North Vietnam may well have had psychological aims first of all. We shall have reason to return to the more vehement modalities of psychological warfare when we discuss the protection of the civilian population. At this juncture, it may suffice to note that psychological warfare, even in its more brutal form, is certainly not a monopoly of the highly industrialized Parties to such gigantic armed conflicts as the Second World War. Indeed, it is a regular feature of all those armed conflicts waged in whole or in part in the form of a guerrilla. The importance of guerrilla warfare as an aspect – and even a characteristic – of many recent armed conflicts is emphasized so incessantly nowadays that it may seem hardly necessary for me to join in that chorus. Some observations may, however, be useful here. First, guerrilla warfare is not a new technique. Like other modes of waging war, it has been applied in many armed conflicts throughout history. Then, guerrilla warfare may, but need not be, tied up with certain specific political situations, such as revolution or national liberation. Obviously, the notion of guerrilla warfare has gained great repute as a consequence of the 16 17

18

W.N. Medlicott, The Economic Blockade, Vol. II (1959) p. 631. See, e.g., Julius Stone, Legal Controls of International Conflict, 2nd impression, revised (1959) p. 629; McDougal and Feliciano, op cit. note 4, pp. 611-614, 654-656. On the bombardment of London in particular, see the present author’s Belligerent Reprisals (1971) p. 161 et seq. See, e.g., Friedrich August Freiherr von der Heydte, Der moderne Kleinkrieg (1972).

Introduction to the Law of Warfare

23

communist revolutions in China and Cuba, the liberation war in Algeria, and similar events. Yet, the same techniques had been applied during the Second World War by resistance fighters operating in the occupied territory of many European countries and by commandos and other special forces carrying out their pin-prick missions in territory under enemy control, and in more recent times they were used by the Indonesian infiltrators into Dutch Guinea, as it then was; by the Palestinian guerrilla fighters infiltrating into Israel-held territory, and so on. In other words, guerrilla warfare in the sense it is used here is a widespread technique, which may be applied in more or less favourable conditions, but the essence of which as far as military operations are concerned always consists in a sophisticated use of the elements of mobility, dispersion and surprise in combating superior enemy forces. These hit-and-run tactics will moreover normally be combined with acts of sabotage and terror, the small-scale versions of economic and psychological warfare. Traditionally, war was waged on land and at sea. Land warfare included in the main the battle between opposing armies, the siege of defended localities, and occupation of enemy territory. The main forms of warfare at sea were the naval battle and the seizure in prize of merchant vessels and contraband, with the bombardment of objectives on the shore as an occasional side-activity. This traditional pattern may seem to us rustic and even comparatively harmless. But let there be no misunderstanding: wars in those days often were particularly savage and cruel affairs, and this not only in so far as the opposing armies were concerned, but for the civilian populations as well. Yet, the development of aviation has added a dimension to warfare which in reality has modified its physiognomy. The question is not that the battles between armies or navies have now become complicated by the participation of the respective air forces, nor even that operations of economic warfare against such targets as merchant vessels took on a different aspect when the bomber took over the task of the man-of-war. The real and indeed fundamental change lies in that the whole of the enemy territory now has been brought within the reach of military operations. This means, first of all, that enemy military installations, troop concentrations and similar targets can be attacked wherever they are found. It means, furthermore, that also industrial objectives can be so attacked; and, as we have seen that in industrialized countries the importance of industry for the war effort has increased enormously, the twofold conclusion lies at hand that the number of industrial objects worth attacking must be high and that these objects are likely to be spread over the territory, that is, among the population. Here, indeed, lies the crux of the matter; the development of air warfare has brought this essential change that the civilian population is now suffering from the scourge of war in a measure out of comparison greater than ever before. 19

As is well-known, the ratio between belligerent and civilian war victims has come to be reversed in the course of this century.

24

Chapter 2

Sea warfare, which was referred to a moment ago as one of the traditional dimensions of warfare, shall not be discussed here. It is a highly technical and complicated domain, especially in its aspect of economic warfare, and therefore lends itself best to separate treatment. The only aspect of the use of naval power that will be encompassed in our argument is the aspect which from the point of view of the navy will always appear slightly out of the ordinary, viz., naval bombardment of objectives on land. A final aspect of warfare to be mentioned in this introductory part is the question of its goals. This question can be discussed at different levels. There is the immediate, short-range goal of a tactical operation: the elimination of an enemy unit, the interdiction of the use of a road or bridge, and so on. Such tactical goals generally will fit into a larger and more long-range plan, which contains the strategic goals: to get hold of certain key positions or certain parts of the enemy territory, to gain air superiority, to put a stop to the enemy energy production, and so on. The strategic goals of warfare in its military sense are still technical military goals. In the same way one may refer to the strategic goals of industrial or of economic warfare, as the technical but long-range goals proper to those modalities of warfare. These tactical and strategic goals are governed, if all is well, by the political goals of warfare: the reasons why the war is waged, the aims sought by the political leaders at the highest level. As history shows, these political goals may range from a simple frontier readjustment to the very annihilation of the enemy State. Ideology has often played an important role in their formulation. This was evident, for instance, in the Second World War, where the dominant political goal was the annihilation of the Nazi regime; a goal which led the United States to demand unconditional surrender, as no conditions could be accepted from such an infamous regime. This demand had the effect of prolonging the war even after Germany had for all practical purposes lost it. Similar influences of ideology may be observed where the political goals of warfare are defined in terms of war against the “communists”, the “imperialists”, the “Zionists”, and so forth. While such language may have the effect of providing the population with a motivation for supporting the war effort which it would otherwise lack, it also tends to lead to increased cruelty and ruthlessness in waging the war. The very idea of total war, in the sense of war waged against the whole of the enemy population, stems from such ideological considerations rather than from any rational weighing of the political or military interests involved. It seems therefore important to fight the influence of ideology on the formulation of the political goals of warfare and to urge that these be defined in terms of the political interests actually at stake. Armed conflict, it should be realized, is bad enough as it is; even “limited war” is war in the first place.

20

See, e.g., C. John Colombos, The International Law of the Sea, 7th ed. (1968).

Introduction to the Law of Warfare

25

While the political goals of warfare may differ widely, certain goals have been outlawed under modern international law. This is true of the conquest of the whole or part of another State’s territory; it is by now an accepted rule that such territorial changes cannot be recognized. It remains to be seen whether this rule will prove to be a hundred percent effective in the event of a State making territorial conquests nonetheless, or whether it will then merely have the effect of postponing recognition of the new territorial situation. Be this as it may, it is an established fact that conquest has become an illegitimate goal of warfare. The same holds good for a goal like the extermination of an enemy population, a type of activity I need not comment upon any further. Even taking into account these limitations, the range of possible political goals of warfare is still immensely wide. Perhaps it may be possible, though, to indicate a common denominator of what may be regarded as legitimate goals of warfare. I refer to an international instrument of more than a century ago, the Declaration of St. Petersburg of 1868, where it is stated in the preamble that “the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy.” This, indeed, is the crux of the matter; whatever goals may be pursued with the instrumentality of armed conflict, the very road one has chosen implies that what one is up against are the military forces of the enemy; those, and only those, are the forces one may legitimately endeavour to overcome. 3

Law of Armed Conflict, Law of Warfare

With this discussion of legitimate goals we have already touched upon a first normative aspect of armed conflict and of warfare in particular. We shall now broach this normative side of our subject in a more systematic manner. Multiform though the phenomenon of armed conflict may be, it presents certain characteristic features which historically have allowed the development of a specific part of international law especially devoted to it. Traditionally named the law of war, this branch of international law nowadays is usually referred to as the law of armed conflict. For a long time, the law of armed conflict has developed as customary law. It is only in comparatively recent times, since the second half of the 19th century, that the multilateral treaty became an important instrument in this development. The Declaration of St. Petersburg of 1868, which I mentioned a moment ago and to which I shall return again at a later stage, is in fact one of the oldest of these treaties. Even older, and of greater importance for the development of the law 21 22 23

Declaration on Principles (etc.), GA Res. 2625 (XXV). See also Michael Akehurst, A Modern Introduction to International Law (1970) p. 188. De Martens, N.R.G. Vol. 18, p. 474.

26

Chapter 2

of armed conflict, is the Geneva Convention of 1864 for the Amelioration of the Condition of the Wounded in Armies in the Field. This Convention, in fact, marked the beginning of a movement which led to the construction, in 1949, of the grandiose edifice of the four existing Geneva Conventions. The law of armed conflict in its totality covers a wide range of subjects. There are, for one thing, the relations between the Parties to the conflict. The existing diplomatic relations normally will be severed; what happens to the personnel, and to the diplomatic premises? What is the fate of the treaty relations which existed between the Parties; are they terminated once and for all or do they revive after the war, or do they simply continue? How can normal relations be restored between the Parties after the hostilities have come to an end; is a peace treaty necessary in all cases? What are the effects of an armistice? What are the powers of a belligerent Party with respect to enemy private property found in its territory: is he entitled to confiscate this immediately, or merely to sequestrate it for the duration of the conflict? And what should happen with property so sequestrated after the war? Then, there are the relations between the Parties to the conflict and States not taking part in it, the neutral States of traditional international law. To what extent will these non-involved States have to tolerate their interests being impaired as a result of the activities of the Parties to the conflict? What are the rights, what the obligations of a neutral State? What is the effect on all this of the Charter of the United Nations with its system of collective security? As non-international armed conflicts in particular are concerned, what are the relations between the insurgent Party and other States? When is recognition of insurgency justified, and what are its effects? Who is internationally responsible for damage done by the insurgent Party? And so on and so forth. We are not concerned here with these questions but with part of yet another section of the law of armed conflict, a section which in present days usually is referred to as the “international humanitarian law applicable in armed conflicts”. This deals with such matters as the use in combat of weapons and other means and methods of warfare and the treatment of war victims by the enemy; put another way, its subject is the direct impact of war on the life, personal integrity and liberty of human beings and the degree of protection which can be afforded them. It follows that there must exist a narrow connexion between this humanitarian part of the law of armed conflicts and the international law of human rights. Indeed, the same vital interests of man find protection in the international 24 25 26

Text in International Red Cross Handbook, 11th ed. (1971) p. 7. Ibid., p. 28 et seq. There is an abundance of literature about these questions, which are also dealt with in many handbooks on international law. A special reference seems therefore unnecessary.

Introduction to the Law of Warfare

27

human rights instruments too, for time of peace and even, to a certain extent, for emergency situations such as armed conflict. In the course of time, a large part of the international humanitarian law applicable in armed conflicts has come to be incorporated in treaties and similar instruments. Historically, two lines can be discerned in this process of codification, one leading to what is commonly referred to as the law of The Hague and the other to the law of Geneva. These two bodies of law, named after the centres which were of particular significance in their creation, coincide to a large extent with the two headings mentioned a moment ago, viz., the rules relating to the use of weapons and other means and methods of warfare, and the treatment of war victims who have fallen into the enemy’s hands. It should be added immediately that the distinction made here reflects a difference, not a division. In fact, considerable parts of the law codified by the Hague Peace Conferences of 1899 and 1907 were later incorporated in Conventions of Geneva: viz., the treatment of prisoners of war in 1929, and the relations between an Occupying Power and protected persons in occupied territory in 1949. Again, the recent conferences of Government and Red Cross experts, held in 1971 and 1972, studied proposals for new instruments which were presented as additional to the Geneva Conventions of 1949 but which in reality dealt with aspects both of the law of The Hague and of Geneva. There is, briefly, a close relationship between the two parts of the international humanitarian law applicable in armed conflicts; a relationship which we shall come across again, notably when the protection of the civilian population against the dangers of the war is discussed. The part of the humanitarian law of armed conflict to be discussed in the following chapters concerns the rules relating to the use of weapons and other means and methods of warfare. As this part of the law deals specifically with wartime violence and other activities constituting warfare in a strict sense, I shall refer to it as the law of warfare. Other current terms are the law of combat, or 27

28

29

For an analysis of the relationship between the law of armed conflicts and the law of human rights, see: J.S. Pictet, Les principes du Droit international humanitaire (1966); see also G.I.A.D. Draper, “The Relationship between the Human Rights Regime and the Law of Armed Conflict”, in Israel Yearbook on Human Rights (1971) p. 191. A more critical appreciation of the relationship is given by H. Meyrowitz, “Le droit de la guerre et les droits de l’homme” in Revue du Droit Public et de la Science Politique en France et à I’Etranger (1972) p. 1059. As to the distinction between the Law of Geneva and the Law of the Hague, see: Jean Pictet, op. cit. note 27; Denise Bindschedler-Robert, “A Reconsideration of the Law of Armed Conflicts”, in Carnegie Endowment for International Peace: The Law of Armed Conflicts (1971). The proposals were concerned, inter alia, with such subjects as the protection of the civilian population and the law as to means and methods of warfare, which thus far have belonged to the law of The Hague and which will be discussed infra. At the 1972 Conference, the relationship between the Hague Regulations on Land Warfare of 1899/1907 and the Draft Protocols was expressly mentioned; Report, para. 3.13.

28

Chapter 2

battlefield law. While these terms are appropriate for a specific and indeed central aspect of warfare, the term chosen here is slightly wider and covers the whole of the complex notion of warfare discussed earlier in this chapter. 4

Principles of the Law of Warfare

It seems an apposite conclusion of these introductory remarks to set out the basic principles on which rests the international humanitarian law of armed conflict and, more specifically, the law of warfare. The fundamental principle underlying the whole structure of the international humanitarian law applicable in armed conflicts is that belligerents shall not inflict on their adversaries harm out of proportion to the legitimate goals of warfare. An immediate conclusion from this principle is, for instance, that belligerents shall not kill their prisoners; for, having captured them, they have to that extent weakened the military forces of the enemy, and killing them would add nothing to this result. The basic principle of the law of warfare following out of this most fundamental principle is that the right of the Parties to a conflict to adopt means of injuring the enemy is not unlimited. This is not a mere truism, as it might perhaps appear to be at first glance. It is the confirmation, and a necessary confirmation, that there are legal rules even about warfare, the form of human activity which seems to be most starkly in contradiction with the idea of legal order. Put another way, it is the flat denial of the old saying that inter arma silent leges; true, many (though not all) laws written for more peaceful situations will be silent amidst the tumult of war, but other rules have emerged which govern precisely that situation. This basic principle found expression already in the first multilateral treaty purporting to embody the law of warfare in its entirety, viz., in Article 22 of the Regulations annexed to the Hague Convention concerning the Laws and Customs of War on Land adopted in 1899 by the International Peace Conference and amended in 1907 by the Second Hague Peace Conference. Nor was this the last time that the principle found authoritative expression; in December 1968, just before the end of Human Rights Year, the UN General Assembly adopted Resolution 2444 (XXIII) concerning “respect for human rights in armed conflicts”, which in its first operative paragraph specifically reaffirmed the principle of limitation. From this admittedly very general principle, some further, slightly less abstract principles may be deduced. I mention four: (1) Distinction shall be made at all times between belligerents and the civilian population;

30

Pictet, op. cit. note 27, pp. 28-31, 52-57.

Introduction to the Law of Warfare

29

(2) The civilian population, as well as objects of civilian character, shall not be made the object of deliberate attacks; (3) In attacking military objectives, any unreasonable damage to the civilian population and objects of civilian character shall be avoided; (4) No weapons or other means and methods of warfare shall be used which are calculated to cause unnecessary or otherwise excessive suffering. All these principles are vague and leave many questions open. To enter into these questions is the purpose of the subsequent chapters.

PART 2 reaffirmation and development of international humanitarian law

Chapter 3 The Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, 24 May - 12 June, 1971*

1

Introduction

When, on 12 August 1949, the Diplomatic Conference of Geneva finished its work, an important part of the law of armed conflict had been “codified and progressively developed” in the light of past experience both of the Second World War and other recent armed conflicts. However, this was a far cry from saying that one could lean back in satisfaction over a job well done. Indeed, equally – or perhaps even more – important problems of the law of armed conflict had remained outside the scope of the Conference and, hence, had not found a solution in the four Conventions it had adopted. The Conference had in fact been restricted to an examination of the problems concerning protection of war victims rather than those concerning warfare proper. And although the IVth or Civilians Convention in particular deals incidentally with the power of belligerents to attack enemy territory, the problem of the protection of the civilian population against the dangers of modern warfare had remained essentially open. Nor did other bodies display any great anxiety to tackle these problems. The International Law Commission, when organizing its work in 1949, decided not to put the topic of the “laws of war” on its agenda, mainly for fear that public opinion might interpret the selection of such a topic “as showing lack of confidence in the efficiency of the means at the disposal of the United Nations for maintaining peace.” The General Assembly, on its part, confined itself to affirming as early as 1946 that the principles contained in the Charter and Judgment of the Nuremberg Tribunal constituted principles of international law, and afterwards rapidly lost interest in the matter. The only significant result achieved in that period, besides the Geneva Conventions of 1949, was the adoption at The Hague, on 14 May 1954, of the Convention for the Protection of Cultural Property in * 1 2

First published in 2 NYIL (1971) pp. 68-90. I.L.C. Yearbook, 1949, 281: Report to the General Assembly, para. 18. Res. 95(1) of 11 Dec. 1946 affirmed the principles. GA Res. 177(II) of 21 Dec. 1947 requested the International Law Commission to formulate these principles in the framework of a draft code of offences against the peace and security of mankind. Thereupon, the attention of the General Assembly became focused on the question of such a draft code, a question which soon became entangled with the problem of defining aggression.

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the Event of Armed Conflict, a Convention concluded under the auspices of UNESCO. In this situation, the International Committee of the Red Cross (or ICRC) felt it could not remain silent in the face of the obvious dangers threatening the civilian population. Its concern was primarily with the threat of nuclear disaster; in an appeal of 5 April 1950, addressed to the Governments of States Parties to the Geneva Conventions, it urged them to arrive at an agreement on the prohibition of nuclear weapons, and of blind weapons in general. Similarly, the first draft text in which the ICRC in 1955 elaborated its ideas about permissible means and methods of warfare bore the title “Draft Rules for the Protection of the Civilian Population from the Dangers of Indiscriminate Warfare”. In the second version, published in 1956 as a preparatory document for the XIXth International Red Cross Conference (New Delhi, 1957), the title had been modified to read “Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War”. Yet the concern underlying the Draft Rules had remained the same. Nothing much came of the Draft Rules: after a general discussion of their principles by the New Delhi Conference, it soon became apparent that Governments were for the time being unwilling to commit themselves to anything so .precise as the rules proposed by the ICRC for the conduct of warfare. The crucial issues at the time were obviously the possibility of nuclear weapons being brought into use especially in the form of a “counter city strategy” and the relationship of that apocalyptic prospect to the function of those same weapons and strategy as a deterrent and, hence, as an instrument serving the maintenance of peace. Since the time of the abortive Draft Rules, certain phenomena have become apparent which, on the one hand, have lessened the tendency to give too exclusive attention to the issues connected with nuclear weapons and other means of indiscriminate warfare and, on the other, have increased the need to arrive at a reaffirmation and development of those parts of the law of armed conflict which in 1949 and 1954 were left out of consideration. First, the enormous development in nuclear armaments, so far from leading to an increased threat of major nuclear war, for the time being seems to have resulted in a situation where the actual use of nuclear weapons has become rather less of a probability. Then, it has become apparent that despite the existence of the United Nations, and indeed under the nuclear umbrella of the Great Powers, non-nuclear armed conflicts continue to 3

4

Records of the Conference Convened by the United Nations Educational, Scientific and Cultural Organization Held at The Hague from 21 April to 14 May 1954, published by the Netherlands Government in 1961. Reprinted as Annex XIV in Reaffirmation and Development of the Laws and Customs Applicable in Armed Conflicts, published by the ICRC in May 1969 and submitted to the XXIst International Conference of the Red Cross held at Istanbul in September 1969.

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35

occur, involving the use of all kinds of weaponry and methods of warfare and exposing the civilian population in the countries struck to unspeakable hardships and suffering. Third, while international (in the sense of inter-State) armed conflicts were not wholly absent, the vast majority of the armed conflicts waged in this period were of the type indicated in the Geneva Conventions of 1949 as “armed conflicts not of an international, character”, a category presenting particular difficulties from the point of view of applicable law. And finally, guerrilla warfare has come to be a regular feature of many of the armed conflicts of the present period. The realization of the existence of these phenomena has led to some major changes in the attitude adopted by the various bodies concerned. Thus, the XXth International Conference of the Red Cross held in 1965 at Vienna adopted, at the instigation of the ICRC, a resolution laying down certain basic principles applicable in all armed conflicts and inviting the ICRC to continue its studies with a view to the development of international humanitarian law. While this resolution still bore the title of the item on the agenda “Protection of the Civilian Populations Against the Dangers of Indiscriminate Warfare”, the shift in emphasis came to light even more clearly in the report which the ICRC, after consultation with a group of experts in February 1969, laid before the XXIst International Conference of the Red Cross held in that same year in Istanbul; the report was entitled “Reaffirmation and Development of the Laws and Customs Applicable in Armed Conflicts” and, while nuclear weapons and other means of mass destruction still occupied an important place, an even greater part of the report was taken up by the problems of conventional and guerrilla warfare and of non-international armed conflicts, even including situations of internal disturbance and tension. Even more pronounced was the change in attitude of the United Nations, where the shift was from a complete lack of interest to deep involvement especially in the human rights aspects of present-day armed conflicts. The new approach became apparent for the first time when the International Conference on Human Rights, held at Teheran in April-May 1968, adopted a resolution urging the study of measures for a better application of existing law and the need of new instruments for better protection of civilians, prisoners and combatants in all armed conflicts. The General Assembly in its 23rd session took over this initiative and in a resolution entitled “Respect for Human Rights in Armed Conflicts” affirmed, on the one hand, the principles formulated in 1965 by the Vienna Conference of the Red Cross and, on the other, charged the Secretary-General to undertake, in consultation with the ICRC, the studies requested by the Teheran Conference. In execution of this charge, the Secretary-General (or, rather, the Human Rights 5 6 7

Res. XXVIII. Res. XXIII. Res. 2444 (XXIII) of 19 Dec. 1968.

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Division of the Secretariat under its active Director, Mr. Marc Schreiber) in 1969 and 1970 produced important reports on “Respect for Human Rights in Armed Conflicts”, giving a clear expose of the many problems to which a better protection of human beings in present-day armed conflicts gives rise. The new trend affected other bodies as well. In September 1969 the Carnegie Endowment for International Peace, which for a long time had refrained from taking on the law of armed conflict as a subject of study and discussion, organized a conference at Geneva, where the issues of modern warfare and the law were discussed on the basis of a lucid, comprehensive report by Professor Denise Bindschedler-Robert on “The Law of Armed Conflicts”. The Netherlands Society of International Law followed suit and in April 1970 held a meeting devoted to the question of the protection of the civilian population in the event of armed conflict, discussing the subject on the basis of reports produced by Professor Dr B.V.A. Röling, Director of the Peace Research Institute of Groningen University, and by the present author. And in Italy one even witnessed the creation of a completely new institution, the San Remo Institute of International Humanitarian Law, concerned primarily with promoting the study of the humanitarian law of armed conflict. With these developments, the ICRC considered the time ripe for a further step which would take the matter out of the sphere of study and reports and bring it into the sphere of lawmaking proper. The ultimate goal was, while leaving the Geneva Conventions of 1949 and the Hague Convention of 1954 intact, to bring into existence one or more new instruments which, if not completely, at least in part would be of equal binding force, and preferably as widely accepted, as the Geneva Conventions. This meant that the final stage would have to be a diplomatic conference; but it was equally evident that further preparations would be necessary before such a conference could be convened. Therefore, the ICRC, after due consultation with the Secretary-General of the United Nations, took the initiative in calling a meeting which would be something between a mere consultation of experts and a conference of Government representatives: it convened a conference of Government experts. The idea was that in this manner the 8 9

10

11

A/7720, A/8052. Carnegie Endowment for International Peace: The Law of Armed Conflict, report of the Conference on Contemporary Problems on the Law of Armed Conflicts, Geneva, 15-20 Sept. 1969. De positie van de niet-bezette burgerbevolking in een gewapend conflict, in het bijzonder met het oog op massaal werkende strijdmiddelen (NBC-wapens) (The position, in case of armed conflict, of the civilian population in unoccupied territory, with special reference to the means of mass destruction or NBC weapons), Mededelingen (Publications) of the Society, Feb. 1970. Statutes of the Institute, reproduced at p. 365 of Human Rights as the Basis of Humanitarian Law, Proceedings of the International Conference on Humanitarian Law, San Remo, 24-27 Sept. 1970.

The Conference of Government Experts ..., 24 May - 12 June, 1971

37

participating Governments would have an opportunity to air their views without formally committing themselves to any fixed positions, while on the other hand the expert element would guarantee an informed discussion of the various questions at issue. The conference was scheduled for May-June 1971. It was however preceded by another experts’ conference of a more or less preparatory character: at the express request of a number of national Red Cross Societies the ICRC invited all those societies who so desired to take part in a Conference of Red Cross Experts for the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts. This Conference, organized by the Netherlands Society of the Red Cross, took place at The Hague from 1-6 March 1971. 2 The Conference of Government Experts, 24 May - 12 June, 1971 The ICRC invited to the Conference of Government Experts some 40 Governments of States Parties to the Geneva Conventions of 1949, selected on the double basis of geographical distribution and expected expert knowledge. Nearly all the Governments so invited reacted positively; among those who did not accept the invitation, the Government of the People’s Republic of China went out of its way to let the ICRC know that it nonetheless took a deep interest in the matter. Besides Governments, the Secretary-General of the United Nations was also invited to send representatives to the Conference. The Conference was held at Geneva, from 24 May to 12 June 1971. All the working sessions, both of the plenary Conference and of the Commissions which it established, were held in various rooms of the GATT and ITU buildings. The Conference had before it extensive documentation. The ICRC had prepared a set of eight documents containing, besides an introduction (CE/1) and annexes (CE/8), such diverse subjects as: Measures intended to reinforce the implementation of the existing law (CE/2), Protection of the civilian population against dangers of hostilities (CE/3), Rules relative to behaviour of combatants (CE/4), Protection of victims of non-international armed conflicts (CE/5), Rules applicable in guerrilla warfare (CE/6) and Protection of the wounded and sick (CE/7). Other documents before the Conference were the 1969 report on “Reaffirmation and Development of the Laws and Customs Applicable in Armed 12

13

Report on the work of the Conference of Red Cross Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, published by the ICRC, April 1971. The composition of the delegations varied; while some Governments had merely delegated some members of the staff of their permanent missions at Geneva, many other Governments had sent important delegations comprising legal, military, medical, and diplomatic experts. The UN Secretary-General was represented by Mr Marc Schreiber, Director of the Human Rights Division of the Secretariat, accompanied by two collaborators.

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Conflicts”, the two reports by the Secretary-General of the United Nations and reports of the discussions and resolutions of the Hague Conference of March 1971. Thus equipped, the Conference could set to work. The Conference organized its work along the following lines. After two days of general debate in plenary session, it would break up into three Commissions sitting simultaneously. Commission I would deal with the protection of the wounded and sick and Commission II with non-international armed conflicts and guerrilla warfare. Commission III would examine the protection of the civilian population and the rules concerning behaviour of combatants, as well as the question of the protection of journalists on dangerous missions, an item added to the agenda at the special request of the Secretary-General of the United Nations. Commission IV would examine the subject of measures intended to reinforce the implementation of the existing law. This Commission, not originally foreseen by the ICRC, was set up at the express wish of the Conference in view of the generally recognized overriding importance of the topic. However, owing to lack of space and translation facilities it could not meet simultaneously with the other Commissions and therefore would sit during the last week of the Conference, once one of the other Commissions had finished its work. Finally, the Conference would meet again in plenary session to discuss the Commission reports. The procedure to be followed by the Conference, both in plenary session and in the sessions of the Commissions, was laid down in Rules drawn up by the ICRC and accepted by the Conference after some discussion, for instance, of the number of Commissions proposed. Another subject for discussion was the important Rule 6 which, reflecting the character of the Conference as envisaged by the ICRC, laid down that the experts would speak in their personal capacity and without binding their Governments, as well as that the Conference would not “reach any decision, adopt any resolutions or make any recommendations”, nor “take any votes” except for voting “purely as an indicatory measure”. In particular the latter part of this Rule drew some opposition from experts who pointed out that the UN General Assembly in its resolution 2677 (XXV), referring to the work of the Conference, had expressed the hope that it would “make specific recommendations … for consideration by Governments.” The President of the Conference met this objection by explaining that the purpose of Rule 6 was merely to emphasize that the Conference was not a diplomatic conference, and not to prevent the Conference from arriving at conclusions (which, on the contrary, seemed very desirable). 14

Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Geneva, 24 May - 12 June 1971): Report on the work of the Conference, published by the ICRC in August 1971 (hereinafter cited as Report), paras. 4, 5. All references to this report and other documents of the ICRC are to the English versions. See also the third report of the UN Secretary-General on “Respect for Human Rights in Armed Conflicts”, A/8370, 2 Sept. 1971.

The Conference of Government Experts ..., 24 May - 12 June, 1971

39

Another point of major interest, though not the subject of an express Rule, concerned the character of the debate. As the President pointed out, it was the purpose of the Conference to discuss the existing law and the improvements to be made to it, not the behaviour of particular States. This ruling, which was intended to avoid polemical discussion among opponents on the political front (or worse), was observed fairly closely by all the participants, so that except for some minor incidents this “truce” was not broken throughout the Conference. In its first plenary session, the Conference elected Jean Pictet, VicePresident of the ICRC, as its President. Professor Willem Riphagen, leader of the Netherlands delegation, was elected one of the three Vice-Presidents. Coming now to the work of the Commissions, we will discuss each Commission separately in their numerical order. It may be pointed out as a general remark that the Commissions did not produce verbatim or summary records; the task of their rapporteurs was to draw up reports bringing out the trend of opinion and the various viewpoints expressed in the debate, without indicating which expert or experts had taken this or that position. 2.1

Commission I

In accordance with the document presented by the ICRC, the subject before Commission I consisted of two parts: one, the protection of wounded and sick and civilian medical personnel, and the other, the safety of medical transports. Generally speaking, these subjects were more technical than those before the other Commissions. This was especially true of Part Two, which in large part related to such matters as the use of flashing blue lights, radar and radio frequencies as means of identification of aircraft on medical missions, and hospital ships. Indeed, this subject-matter appeared to be so technical that the Commission, while recognizing the need for precise rules in this field, found itself unable to formulate these in the available time. Discussion of this whole Part was therefore postponed to a second conference of Government experts (which the Conference by that time had come to regard as absolutely necessary). The situation was radically different with respect to the issues dealt with in Part One. Here, the ICRC had added to its introductory remarks the text of two completely worked out draft protocols, concerning international and noninternational armed conflicts, respectively. As the Commission found itself in agreement with the main lines of these instruments, it could soon proceed to an article-by-article discussion and even to the setting up of a Drafting Committee. 15 16 17 18 19

Report, para. 7. Para. 1. Paras. 89-92. Doc. CE/7, Part One, Chapters I and II. Report, paras. 36-37.

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In this manner, the Commission succeeded in producing texts of draft Protocols which, it was felt, were sufficiently detailed to be laid before a future diplomatic conference without any further preparatory deliberation. It is a point of major interest that the Commission did not in fact find any difficulty in accepting the view, propounded by the ICRC, that two distinct instruments were necessary. It was argued that the situations of international and non-international armed conflict are different; that, on the one hand, while the Protocol applicable to non-international armed conflicts would lay down certain rules not now contained in the Geneva Conventions of 1949, it would also have to make provision for certain matters already covered in detail in those Conventions in relation to the situation of international armed conflict; and that, on the other hand, in view of the specific characteristics of non-international armed conflicts, the Protocol in question should at all times avoid entering into too great detail. These seem valid arguments; but it deserves some emphasis that in Commission II in particular, one of the main issues was precisely whether the distinction between the two types of armed conflict could and should be maintained. The first draft Protocol (which was envisaged as an additional instrument to the IVth or Civilians Convention) extends the protection and respect provided for in that Convention for civilian hospitals, to all civilian medical establishments and units, transportation and personnel, and it lays down rules about the role of the population in relation to the wounded and sick. As for the first aspect, it appeared to be a widely shared expectation that in conditions of modern warfare almost all the civilian medical services would be brought under State control. In conformity with this view, the ICRC had proposed to bring under the operation of the new rule the civilian medical personnel “organized and duly authorized by the State”. However, this formula appeared too restrictive to those experts (such as the Dutch) who considered that not all States envisaged such a wartime organization of the personnel concerned. In order to meet this objection, the words quoted above were replaced by the phrase “duly recognized or authorized by the State”. Another question, related to the foregoing, was the matter of the distinctive emblems. In the ICRC proposal, the use of the red cross emblem was extended to authorized personnel of the State medical services. For those “doctors and nurses” who are not members of that service, the proposal provided that “with the consent of the relevant authorities” they could use the red Staff of Aesculapius on a white background for their identification. The aim of this proposal was worthwhile: 20 21 22 23 24 25

Paras. 35, 71. Doc. CE/7, Part One, Chapter I. Report, para. 49. Art. 7 of the ICRC draft. Report, para. 56. Art. 11 of the ICRC draft.

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to prevent the use of the red cross emblem getting out of hand. But its negative side was equally obvious: it amounted to the introduction of yet another emblem which, moreover, would not provide any specific protection. In the debate, these objections prevailed and, while the ICRC was invited to study the problem further in co-operation with other interested organizations, the proposed text concerning the Staff of Aesculapius was removed from the draft Protocol. As for the role of the population, the draft Protocol provides, for one thing, that the population shall be permitted spontaneously to come to the aid of wounded and sick, of whatever nationality, and that no one may be punished for such activities. For another, it provides that the duty of the population is to respect the wounded and sick. The second draft Protocol, relating to the protection of wounded and sick in non-international armed conflicts, for the time being is conceived as an additional Protocol to Article 3 common to the four Geneva Conventions of 1949. The draft text contains a number of basic principles concerning such matters as protection and care of all the wounded and sick, the search and recording of such persons, the role of the population, the respect and protection due to medical and religious personnel and to medical establishments and transportation, the evacuation from danger areas of wounded and sick and other especially vulnerable categories, and the use of the red cross emblem. In debating the functions and protection of medical and religious personnel, the Commission arrived at the conclusion that it was preferable to avoid in the present Protocol such terms as “prisoner of war” and “enemy”, the use of which might give rise to difficulties in the context of non-international armed conflict. This seems an obvious solution of an otherwise very difficult problem; but it may be pointed out already here that Commission II in its discussion of the status of irregular combatants in non-international armed conflicts did not see its way to accepting such an easy way out. An important addition to the text proposed by the ICRC was the inclusion, at the initiative of the Canadian experts, of an article declaring that a State’s offer to send humanitarian aid, or to receive wounded and sick and other especially vulnerable categories of persons, shall not be considered as an unfriendly act or have any effect on the legal status of the parties to the conflict. The Commission adopted the Canadian proposal and extended its operation, as far as the offer of humanitarian aid is concerned, to an impartial humanitarian organization. All this seems innocent enough; yet – and, in view of the recent experience in Nigeria, understandably – the question was raised in the debate whether the 26 27 28

Report, para. 66; the Commission especially mentioned the World Health Organization and the World Medical Association. Doc. CE/7, Part One, Chapter II; Report, para. 72. Report, para. 82; similarly, the Commission decided that all references to the parties to the conflict would be with a small “p”; para. 78.

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provision did not amount to an infringement of the sovereignty of the State. In reply, it was explained that the proposed text did not lay any obligation on the parties to the conflict to accept the aid thus offered: it merely served to encourage humanitarian initiative on behalf of war victims. This somewhat ambiguous answer appears to have satisfied the objectors. 2.2

Commission II

As far as concrete results are concerned, Commission II stands out in sharpest contrast to Commission I. Although in its documentation the ICRC had formulated certain tentative proposals, this Commission made no attempt to arrive at any definite texts; indeed, the whole discussion had very much the character of a reconnaissance. It was generally agreed that the present state of law relating to situations of non-international armed conflict is unsatisfactory; thus, in the four Geneva Conventions of 1949, only common Article 3 is applicable in those situations, and even that Article displays many shortcomings. However, there was no such wide agreement about the best way to mend these defects. Three methods seem to present themselves: to abolish the whole distinction between international and non-international armed conflicts, to bring as many situations as possible under the notion of international armed conflict, and to improve the rules applicable to non-international armed conflicts. The ICRC preparatory document, opting first of all for the third method, suggested the drawing up of a Protocol laying down basic principles of the law of armed conflict. It added some proposals along the lines of the second method. Both these methods, based as they are on the distinction in law between the two categories of armed conflicts, make a consideration of their definition necessary or, in any event, desirable. The existing Conventions merely refer, for international armed conflicts, to “all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them” (Article 2); and, for non-international armed conflicts, to the “case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties” (Article 3); formulas which admittedly leave too much scope for the parties concerned to be of any great avail in dubious cases. Thus, the ICRC had devoted a part of its document to this problem of definition and formulated certain proposals. Principal opposition to this approach came from the Norwegian experts, who considered the entire distinction between international and non-international armed conflicts obsolete. They accordingly proposed an outline for a draft

29 30

Paras. 85-86. Doc. CE/5, Title III.

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protocol that would be applicable in all armed conflicts. The chief merit of this proposal lay in the fact that it removed the need to find any definitions. As the existing Conventions and the customary law would remain in force, however, and as the Norwegians themselves included in their proposal a provision expressly bringing certain situations of armed conflict (such as wars of national liberation) under the operation of the Conventions as a whole, the abolition of the distinction in their proposal seems more apparent than real. Be this as it may, their point of view received some support from other experts; but the general impression is that a majority considered the maintenance of the distinction unavoidable in view of present-day realities. The Commission was thus led to consider the problem of definitions. In the ICRC document this subject was divided in two parts, one relating to the objective finding of the existence of armed conflicts and the other to the question of definition proper. Evidently, the objective finding of the existence of a noninternational armed conflict, and then preferably on the basis of an agreed definition, is a highly desirable goal. It is equally obvious however that little enthusiasm can be expected for the idea of granting some or other international body power of decision in this respect. Thus, while the experts examined many possibilities for existing bodies to be charged with a fact-finding mission or new bodies being created for that purpose, there was a general feeling that for the time being no power of binding decision could or should be conferred on any such body. This merely increased the importance of finding a definition, if only as an instrument in the hands of such existing international bodies or ones about to be created which might be in a position to urge the authorities in a given State to accept that the situation in their country has assumed the characteristics of a non-international armed conflict. The ICRC had argued in its preparatory document that the text to be drawn up should include both a sufficiently flexible definition of the general notion of non-international armed conflict, and a more precise description of those specific situations commonly regarded as unquestionable instances of such conflicts. The Commission discussed the question at length and a number of propositions were introduced. Finally, in view of the complexity of the subject and the wide variety of opinions, a Drafting Committee was set up with the task of putting forward proposals which would enable the Commission to resume discussion of the subject. The Drafting Committee duly submitted a report containing a draft text. However, this deviated in two respects from the line indicated 31 32 33 34 35 36

CE/Com. II/l-2-3, Report, p.61. Report, paras. 112, 134. Doc. CE/5, Title III, Chapters 1 and 2. Report, paras. 197-211. Doc. CE/5, 46-48. Report, para. 166.

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in the ICRC document: it did not purport to define non-international armed conflict as a concept of international humanitarian law in general, but solely as a term governing the applicability of the Protocol on non-international armed conflicts envisaged by the Commission; and, rather than containing any flexible general definition accompanied by a non-exhaustive description of specific situations, it merely gave a limitative enumeration of specific situations, defined as accurately as possible in terms of objective characteristics. When the report of the Drafting Committee came up for discussion in the Commission, several experts duly noticed these deviations with regret. However, it would not have been beyond the wit of man to bring the proposal into line with the original, widely accepted idea of a general formula plus specific examples; indeed, a proposal to that effect was made during the debate. What remained was a valuable effort at defining in slightly more objective terms the hard core (in the sense of most likely and most generally accepted situations) of a notion long considered as escaping definition. It seems indeed probable that the text drawn up by the Committee will play a significant role in the further deliberation of the subject. The Commission, for its part, confined itself to a summary discussion of the proposed text; no vote was taken in the end, not even (in the terms of Rule 6 of the Rules of Procedure) “as an indicatory measure.” The Commission next passed on to an examination of the possible contents of a Protocol on non-international armed conflict. Here, the difficulties really commenced. The subject evoked such thorny problems as the status of insurgents and their treatment as prisoners of war; punishment of rebels for having taken up arms; capital punishment; the task of the authorities in maintaining law and order, especially in new countries still struggling for their very existence; and, generally, the compatibility with national sovereignty of a Protocol providing all kinds of rules for the critical situation of non-international armed conflict. Most of these problems, however, were touched upon rather than thoroughly discussed. It may therefore suffice to comment briefly on one or two of these points, which are thought to be of particular concern. Treatment as prisoners of war for categories of persons who are probably not strictly entitled to such treatment under the IIIrd or Prisoners of War Convention of 1949 is a subject which arose because of increased international sympathy for the cause of liberation fighters in so-called wars of national liberation (that is, for the most part, liberation from colonial or racist domination). Leaving aside the question of the adequacy of this approach in relation to the particular situations concerned, it may be conceded that there is a certain attraction in the idea of ensuring humane treatment of the participants in a non-international armed 37 38 39

CE/Com. II/13/Rev.1, Report, pp. 63-64. Report, para.l77. Para. 190.

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conflict by granting them a treatment similar to that of prisoners of war in an international armed conflict. On the other hand, it brings with it certain difficulties. Thus, while a prisoner of war may be punished, according to Article 85 of the IIIrd Convention, for acts committed prior to capture, he will not be punished for the mere fact of having taken up arms. More generally, it is widely recognized that in actual practice, the prosecution of prisoners of war under Article 85 during the course of the armed conflict encounters such grave difficulties that it is more a theoretical than a practical possibility. In contrast, in the case of non-international armed conflict the authorities in power will be inclined to hold on to the last minute to such notions as their duty to maintain law and order, and the allegiance citizens owe the lawful authority. In their eyes the use of punishment, even for the mere fact of taking up arms, will be a matter of course. These feelings came to light in the Commission when a number of experts expressed their misgivings about imposing an obligation on States to treat rebels as prisoners of war. Closely connected with the foregoing is the issue of the non-application of capital punishment in the context of non-international armed conflict. Here, the hesitations of some experts were, if possible, even more pronounced; they considered it difficult to accept that a Government would be deprived of its power to inflict the death penalty at a time when it was most needed. Generally speaking, and although other experts (among them the Dutch) expressed a completely different view of the usefulness or justification for capital punishment in the situation at issue, the majority of experts appeared not to be ready to endorse without reservations any suggestion as far-reaching as that the death penalty should be declared non-applicable in the event of non-international armed conflict. There was, however, slightly greater support for the suggestion that there should be no executions during the course of such conflicts. The last set of problems discussed by Commission II in connexion with the subject of non-international armed conflict concerned the question under what conditions the whole of “international humanitarian law applicable to international armed conflicts” could become applicable to an armed conflict waged in the territory of a single State. While there was general agreement that the formula of “international humanitarian law applicable in international armed conflicts” should not be taken too literally, since it could never be the intention to oblige the parties to an internal armed conflict to apply without exception all the many detailed rules of the Geneva Conventions, and since those Conventions are partly based on concepts such as nationality and belligerent occupation which

40 41 42 43 44

Paras. 225, 267. Para. 255. Para. 254. Para. 258. Paras. 260-264.

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find no place in a situation of internal armed conflict, there was rather less agreement about the conditions necessary for its applicability in toto to certain specific situations. In short, three types of situations were examined in this context: one where the insurgent party has come to display many of the features of a State (such as possessing territory, a provisional government and administration, armed forces); another one where there is foreign intervention on one or both sides in the conflict, and a last one where the conflict constitutes a war of liberation. The first-mentioned situation, which amounts to the classical situation of civil war, probably presents the least difficulties. The second one, examples of which abound in current history, raises many problems, both of a fundamental and technical order, such as the type and level of intervention required to have the effect of internationalizing the conflict, and whether intervention entails the application of the whole of international humanitarian law to all the participants in the conflict or only to the foreign intervening forces, et cetera. As for wars of liberation, the attempt to class these as international armed conflicts rests, on the one hand, on a series of United Nations resolutions and, on the other, on genuine concern for the fate of the liberation fighters; but it is open to grave doubt whether the classification of such wars under this heading, without regard for factors such as the level of fighting or the degree of organization of the liberation fighters or their number, can do their cause any significant good. The body of international humanitarian law applicable in international armed conflicts is designed to govern the conduct of belligerents in certain characteristic factual situations, and an attempt to declare it applicable to a situation which does not in fact present these features runs the risk of remaining a dead letter. Anyway, opinions among the experts were sharply divided on the issue, with many defending the view that wars of liberation are international armed conflicts under present-day international law and many others emphasizing the difficulties inherent in such an approach which tends to reintroduce ideas of bellum justum in the context of international humanitarian law. It remained for the Commission to discuss the subject of guerrilla warfare. This highly topical method of waging war has given rise to a whole series of humanitarian problems, ranging from the status of participants to the position of the civilian population and the methods of warfare. From one point of view, there may be no reason to devote separate attention to these problems, as guer45 46 47 48 49 50

Paras. 114-122. Paras. 282-289. Paras. 290-308. See the reports of the Secretary-General, A/8052, paras. 195-203, and A/8370, para. 135. Report, paras. 321-331. Paras. 332-338.

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rilla warfare occurs either in the context of an international armed conflict (where the whole of the law of armed conflict applies) or in the context of a non-international armed conflict (where certain basic minimum rules apply). This, however, seems a rather too legalistic approach, as it happens only too often that the parties, or one of them, deny the existence of the conflict, the applicability of the relevant law, or their opponent’s status as participants. In order to meet this practical difficulty (which for all practical purposes leads to a lawless situation), the ICRC proposed to draw up Standard Minimum Rules, not as an agreed instrument, but as a text which should be at the disposal of belligerent parties for unilateral adoption, irrespective of – and without influence on – the classification of the conflict. Naturally one would hope that reciprocity – highly desirable as an incentive to faithful observance – might be achieved by both parties delivering parallel unilateral undertakings. There was some sympathy among the experts for the idea of Standard Minimum Rules. On the other hand, the matter of the contents to be given such Rules was not studied in depth, owing to lack of time. Slightly more attention was given to another proposal of the ICRC, which aimed at adding to the IIIrd or Prisoners of War Convention a Protocol relaxing by interpretative means, the conditions laid down in Article 4A(2) of that Convention for the granting of prisoners of war status to captured combatants. These conditions, originally formulated for militia and volunteer corps and in 1949 also made applicable to resistance fighters in occupied territory, require a responsible commander, a uniform or fixed distinctive sign, the carrying of arms openly, and observance of the laws and usages of war. There is general agreement that it may be very difficult, if not impossible, for guerrilla fighters to meet all these conditions, especially if taken literally. It is equally agreed, however, that regular armed forces do not nowadays carry arms openly in all circumstances, nor are they always easily recognizable by their uniforms. In these circumstances, it seems logical to relax the conditions for guerrilla fighters as well. While many (though not all) of the experts were ready to accept such a relaxation in principle, there was less agreement about how far it should go. The Norwegian expert, who felt that membership of a guerrilla organization should be made the sole condition, went furthest. While this seems very drastic, he detracted slightly from the far-reaching consequences of his statement by explaining that “guerrilla organization” should be understood to mean “a movement with a high command capable of ensuring generally the execution of its 51

52 53 54

Doc. CE/6, Chapter V. See also Michel Veuthey, “Règles et principes de droit international humanitaire applicable dans la guérilla”, 7 Revue belge de droit international (1971-2) p. 505 et seq. Report, para. 371. Doc. CE/6, Chapter II, section 2. Report, para. 372.

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orders, including as far as possible respect for the laws and customs of war”. Two comments spring to mind: in this formulation, particular significance attaches to the words “as far as possible”; and any reference to an obligation for guerrilla fighters to make themselves distinguishable from the civilian population is conspicuously absent. The latter obligation was essential to many experts, who considered that the distinction between combatants and the civilian population is at the very root of international humanitarian law. However, the point was left undecided. 2.3

Commission III

The question of the distinction between civilian population and participants in the hostilities was among the first to be discussed by Commission III, in the context of the protection of the civilian population. The documentation on which the discussion was based proposed certain tentative definitions for such key concepts as “civilian population” and “non-military object”, as well as a number of detailed rules for the protection of these categories, distinguished in general protection of the whole of the civilian population and of non-military objects, and special protection of certain specified categories. All of this was envisaged as applying without distinction to international and non-international armed conflicts alike; this approach was received favourably by several experts. If the definition of “military objectives” and “non-military objects”, “combatants” and “civilian population” is to serve a useful purpose, it can only be on the basis of the presupposition that the distinction between these various categories can be made, not only in law but in practice as well. The value of these distinctions has long been a matter of doubt for certain publicists, who felt that technological and ideological developments had come to a stage where the civilian population, far from being in a protected position, constituted perhaps the most essential target of the military operations. Recently, however, there has been a marked tendency to reaffirm the validity of the distinctions and of the basic idea of protection of the civilian population. This tendency was confirmed by the discussion in Commission III, where none of the experts who expressed themselves on the matter doubted that the distinction can and should be made.

55 56 57

58 59 60

Para. 378. Para. 381. Doc. CE/3, Part One, Title II. See also Jean Mirimanoff-Chilikine, “Protection de la population et des personnes civiles contre les dangers résultant des opérations militaires”, 7 Revue belge de droit international (1971-2) p. 619 et seq. Doc. CE/3, Part One, Title I, Chapter 3. Report, para. 417. Para. 425.

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As for the actual definition of the several concepts and the degree of protection to be afforded each of these, a variety of ideas was expressed by the experts. Thus, while there might be agreement that the civilian population includes those who do not take part in the hostilities, no such agreement could be achieved about what constitutes participation in the hostilities. Obviously, the latter concept can be limited or extended to extremes; the first approach will tend to enlarge the category of persons under protection, but may entail the risk of making the whole idea of protection illusory; conversely, the wider the meaning given to participation in the hostilities, the smaller will be the category of persons protected as civilians and the more complete their protection. Categories of persons giving particular difficulty in this respect are those whose activities contribute more or less directly to the war effort (as distinct from the military operations proper), and those who do take part in military operations but only on a part-time basis. A majority of the experts was inclined to steer a middle course, rejecting both the idea that any contribution to the war effort would be considered to constitute participation in the hostilities, as well as the suggestion that part-time participants would be counted among the civilian population except for the duration of their active participation. But they did not succeed in finding formulations for the several concepts mentioned that could satisfy them all. It seems not improbable, however, that in due time an agreed solution will be found. While all this concerned the general protection of the civilian population (that is, immunity from attack and due regard in carrying out attacks on military objectives), the other main aspect of protection of the civilian population was special protection. This can be envisaged, either, as special protection for particular categories of persons or as special immunity for particular zones. Provisions concerning both these possibilities are contained in existing Conventions; thus, according to Article 16 of the IVth or Civilians Convention, the wounded and sick, the infirm and expectant mothers “shall be the object of particular protection and respect”, and Article 14 of the same Convention provides for the establishment of “hospital and safety zones and localities so organized as to protect from the effects of war, wounded and sick and aged persons, children under fifteen, expectant mothers and mothers of children under seven.” The preparatory document of the ICRC mentioned the possibility of extending special protection to such categories of civilians as the civilian medical personnel (a subject dealt with by Commission I, as we have seen), civil defence personnel, members of the police forces and the fire services, and journalists on dangerous missions. It also mentioned women, children and the wounded, sick and infirm, partially as an extension of the categories enumerated in Article 16 of the IVth Convention and partially in order to extend the applicability of the protection to non-international armed conflicts. 61 62

Paras. 426, 432-439. Doc. CE/3, Part One, Title II, Chapter 3, section 3.

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In the course of the debate, certain other specific categories were added to this list, such as the aged, ministers of religion, and refugees. It also became apparent, however, that the whole idea of special protection for particular categories of civilians was met with less than enthusiasm by a number of experts, who felt that the concept of special protection was not itself over-clear and that, moreover, the principle o general protection of the civilian population might be impaired by bringing ever more categories of civilians under special protection. These negative aspects were brought out once again when, at a later stage of the Commission’s work, the debate turned to the position of the civil defence organizations (a subject that we shall not discuss). The other modality of special protection, viz., special immunity for particular zones situated at a distance of the zone of military operations, was met with equally mixed feelings. While some experts regarded it as a most valuable contribution to the protection of the civilian population, several other experts evoked the many difficulties attending its application in practice, and the fear was expressed that the placing of particular zones under special protection would merely result in weakening the general protection of the civilian population not accommodated in such zones. The Commission next turned briefly to such issues as zone and terror bombardment, the use of certain weapons, and economic warfare. The debate on these questions showed up a marked tendency among the experts to protect the civilian population against the effects of these and similar means and methods of warfare. However, it was too summary to warrant a detailed discussion here. One subject left for the Commission, concerning the protection of journalists on dangerous missions, was topical in so far as recent history had demonstrated the very real dangers to which journalists operating as independent war correspondents expose themselves. The General Assembly and the Commission on Human Rights of the United Nations had passed resolutions on the matter, and the last-mentioned Commission had proposed a draft Convention for the protection of journalists, the text of which was before Commission III. Here, 63 64 65 66

67 68 69 70

Report, paras. 452-453. Para. 443. Para. 489. Paras. 468-471. The idea of zones of refuge was given a prominent place in the second report of the UN Secretary-General on “Respect for Human Rights in Armed Conflicts”, A/8052, paras. 73-87. Report, paras. 472-483. Res. 2673(XXV) of 9 Dec. 1970. Res. 15(XXVII) of 24 March 1971. E/CN.4/L.1149/Rev.1, 22 March 1971. As for the organizational and procedural aspects of this question, see the report of the Working Group established in accordance with para. 4 of Commission of Human Rights Res. 15(XXVII), A/8438, 29 Sept. 1971.

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again, opinions were divided. A number of experts gave their full support to the idea of special protection for journalists on dangerous missions, whether in principle or in the specific form of the draft articles drawn up by the Human Rights Commission. Other experts were not so entirely convinced of the desirability of special protection for this category; their objections ranged from the general consideration that special protection for one category of civilians weakens the general protection of the civilian population as a whole, to such specific arguments as that any special protection could only be justified for those journalists providing complete, objective and honest information, and that a journalist under special protection might well make use of his position to carry on activities detrimental to the country of sojourn. In its final meeting, Commission III broached, as the last item on its agenda, a completely new subject, viz., the rules relative to the behaviour of combatants. These rules are embodied, as far as written law is concerned, in the Hague Regulations of 1907. The rules address such diverse subjects as granting quarter, the position of spies, and prohibited means and methods of warfare. While the rules go into considerable detail on some subjects (such as the definition of spies and their position in various circumstances), other subjects of great practical concern are hardly elaborated (the difference between ruses and treachery, the prohibition on the use of means causing unnecessary suffering) or are not even mentioned at all (the obligation to wear a uniform and – not surprisingly – the position of airmen in distress). It is therefore generally admitted, as was admitted by the experts on the Commission, that the rules, while having retained all their validity in principle, stand in need of being completed and updated, so as to be better adapted to the conditions of modern warfare. Apart from this general conclusion, the experts also touched upon many specific issues relating to the behaviour of combatants. There was, for instance, a proposal submitted by the experts of the Federal Republic of Germany to lay down more precise rules concerning ruses and treacherous conduct (or perfidy, as it is now usually called). While the formulation of the proposal was not particularly felicitous in all respects (as, for instance, when the terms “stratagems” as permissible means and “illicit stratagems” as prohibited means were put into juxtaposition), it nonetheless constituted an interesting attempt to bring greater clarity to this essentially obscure matter. Another such subject was the position of airmen in distress. The problems here are that crew members of military aircraft are comparatively scarce (so that their elimination is a worthwhile goal); that it is difficult for them, when in dis71 72 73 74 75

Report, para. 508. Para. 509. Para. 510. Paras. 516-518. CE/Com.III/C.l, Report, 105; see also para. 521.

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tress, to indicate their willingness to surrender, and that it is often uncertain whether they will touch down on their own or enemy territory. This leads to an inclination in practice to attack them while parachuting down or immediately after they have reached the ground. It may on the other hand be argued that this is an illicit practice, as the airmen in question are at least temporarily hors de combat. Few experts expressed themselves on this question, and one cannot refer to any consensus of opinion among them; but it is worth noting that those who did give an opinion were in favour of a prohibition on attacking airmen in distress, even if they should fall behind their own lines. 2.4

Commission IV

The task before Commission IV was to discuss measures intended to reinforce the implementation of the existing law, under four subheadings: supervision, penal sanctions, reprisals and dissemination. As for supervision, most experts drew a sharp distinction between international and non-international armed conflicts. Supervision was generally viewed as necessary and acceptable in cases of international armed conflict, and a number of proposals were formulated concerning a better operation of existing machinery or the creation of new machinery, whether in the context of the United Nations or otherwise. Here, two points stand out: the ICRC declared itself ready to assume the complete responsibilities of Protecting Powers as envisaged in the Geneva Conventions of 1949, and there was substantial support for the suggestion that (existing or new) UN machinery would be added to the list of possible supervisors. Much greater hesitation prevailed as to the feasibility, and even the desirability, of supervision in non-international armed conflicts. While some experts considered supervision in those circumstances an equally urgent necessity, others held that outside supervision in a non-international armed conflict would be frustrated by national sovereignty and that implementation of the law, including 76 77 78 79

80 81 82 83

Report, para. 520, and CE/Com.III/C.3 (proposal submitted by the Israeli experts). Report, p. 105. Commission IV elected the present author as its Rapporteur. Report, para. 530. Paras. 533-539. Among the documents before the Commission was the text of a Projet de règlement d’exécution des Conventions de Genève du 12 août 1949 pour la protection des victimes de la guerre, adopted 17 April 1971 by the Commission médico-juridique de Monaco in its 6th session. Report, paras. 540-549. Paras. 552-554. Paras. 540,543. Paras. 225, 531.

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international humanitarian law, in a country was a task entrusted to the national authorities. Under the heading of penal sanctions, attention was given to the setting up of an international tribunal (a goal considered desirable by many experts, though they doubted its realization in the foreseeable future) and, on the national level, to the implementation by all States Parties to the Geneva Conventions of their obligation to enact the necessary legislation to provide effective penal sanctions for persons committing, or ordering the commission of any of the grave breaches defined in the Conventions. The drawing up of a model law was thought desirable by a number of experts, in spite of the difficulties inherent in such an undertaking in view of the wide differences between systems of penal legislation. Other experts held, on the contrary, that no special legislation was required as the acts defined as grave breaches in the Conventions were all punishable under ordinary penal law; a view which in the light of the preparatory documentation of the ICRC can clearly be disputed. Be this as it may, there was widespread sympathy for the endeavours of the ICRC to collect and publish relevant legislation, and the continuation of these efforts was generally urged. Reprisals, at one time a widely accepted means of enforcing the law of armed conflict, are regarded with little sympathy nowadays and indeed have become the object of far-reaching prohibitions, both in the Geneva Conventions of 1949 and the Hague Convention of 1954. There is one area however where no such prohibitions have yet been effected, viz., the domain of military operations proper; and the category of persons most directly threatened by the possibility of reprisals in that domain is precisely the civilian population (reprisal bombardment, counter city strategy). Confronted with this issue, a number of experts expressed as their opinion that belligerent reprisals still hold an important place in the law of armed conflict and cannot simply be outlawed at a stroke.  On the other hand there was widespread agreement among the experts that, as stated in General Assembly Resolution 2675 (XXV), the civilian population should in no circumstances be made the object of such reprisals.

84 85 86 87 88 89 90 91 92 93

Paras. 239-242 (this point emerged especially in the discussion of Commission II). Report, paras. 558-561. Para. 562. Para. 564. See also Doc. CE/2, Chapter III, section B: 39. Report, para. 563. Doc. CE/2, Chapter III, section E: 47. Report, para. 562. For a general view of this question see, by the present author, Belligerent Reprisals (1971). Report, para. 574. Para. 577.

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Perhaps the most complete consensus of opinion found during the entire conference concerned the need for dissemination of knowledge of the Geneva Conventions, a procedure regarded as a better guarantee of respect for the humanitarian principles than any penalty. Among the numerous suggestions made in this respect it is worth mentioning the following: that national Red Cross societies train legal advisers to be attached to the staff of military commanders (a suggestion first made by the representative of the Canadian Red Cross at the Hague Conference of Red Cross Experts, March 1971); that courses on international humanitarian law be introduced in universities, and that States submit their military manuals (so far as classification permits) to the United Nations or the ICRC, in order that their comparative study might lead to their improvement. 3

Conclusion

Surveying the whole of the Conference’s work, it seems justified to conclude on a fairly positive note. The Conference had before it a wide variety of intricate questions of great practical moment, and it discussed these in a constructive spirit. True, political postures and alignments were often discernible in the debate, but this was indeed a necessary element in a Conference designed to provide a forum for discussion, not merely among experts but, in an informal and non-binding manner, among Governments; and, as remarked before, politics did not on this occasion degenerate into polemics. As for results, with the sole exception of Commission I, the Commissions did not arrive at any agreed solutions nor draw up any definite proposals. This actually was in accordance with the task of the Conference, which was to study and deliberate, not to reach any decisions or eliminate any problems. Taking this into account, one does not hesitate to state that the reports of the Commissions and the plenary sessions provide most useful information on the opinion of Government experts concerning the various questions discussed and thus represent a valuable contribution to the future work in this field. It was clear from the outset that this one Conference of Government Experts would be insufficient preparation for the final stage of a diplomatic conference. Many of the experts emphasized this over and over again: in their view, another experts’ conference would be necessary to complete the work. The announcement made by the President of the ICRC in the final session of the Conference that

94 95

Para. 578. Para. 579. As for the Canadian suggestion, see also the report of the Hague Conference (supra note 12), Chapter IV, section C: 29. The San Remo International Institute of Humanitarian Law (supra note 11) held a seminar from 2-4 Sept. 1971 on “Humanitarian Regulations and Instructions to Armed Forces”; the resolution adopted by the seminar is reprinted in A/8370/Add.1 of 5 Oct. 1971.

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another such conference would be organized in 1972, was therefore received with unanimous approval and satisfaction. The next Conference, convened for May 1972, will represent a further marked step towards the final stage of a diplomatic conference, in two respects: Governments of all States Parties to the Geneva Conventions of 1949 are invited to send their representatives and the ICRC will submit to the Conference concrete proposals in the form of draft texts. However, in the chain of events leading up to the ultimate goal, the 1971 Conference of Government Experts will have constituted an indispensable link.

96

These feelings found expression in a “document” (as the Rules of Procedure permitted no resolutions); Report, para. 603, and CE/Plen/3, Report, p. 121.

Chapter 4 The Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Second Session), 3 May - 2 June, 1972*

1

Introduction

As mentioned in my previous paper, the Conference of Government Experts held in Geneva in May 1971, although an important step on the road towards the “reaffirmation and development” of certain more or less neglected parts of the international humanitarian law applicable in armed conflicts, was in itself insufficient preparation for a future diplomatic conference. A second conference of experts appeared indicated, and the announcement made in the final session of the Conference by the President of the International Committee of the Red Cross (or ICRC) that such a conference would be organized in 1972, was received with unanimous approval and satisfaction. This second session of the Conference of Government Experts was duly held in Geneva from 3 May - 2 June 1972. Prior to entering into its proceedings, it seems useful to put on record certain other activities, related to the subject of this note, which took place in the period between the two Conferences. First, on the level of the United Nations, the Secretary-General submitted to the twenty-sixth session of the General Assembly his third Report on Respect for Human Rights in Armed Conflicts. This consisted for the most part of a comprehensive account of the 1971 Conference of Government Experts. On the basis of this Report and of other relevant documents before it, the Third Committee on 15 December 1971 and the General Assembly on 20 December 1971 adopted two resolutions concerning the general aspects of the subject and one relating to the protection of journalists on dangerous missions.

* 1 2 3 4

Published earlier in 3 NYIL (1972) pp. 18-61. 2 NYIL (1971) p. 68 et seq., at p. 89. A/8370, 2 Sept. 1971. See also the comments of governments on the earlier reports of the Secretary-General, A/8313 and add. A/8589, 15 Dec. 1971: Respect for Human Rights in Armed Conflicts, Report of the Third Committee. GA Res. 2852, 2853 and 2854 (XXVI).

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Important elements in GA Resolution 2852 were: the emphasis laid on the “need to evolve norms designed to increase the protection of persons struggling against colonial and alien domination, foreign occupation and racist regimes” (operative paragraph 3 sub b), the request to the Secretary-General “to prepare as soon as possible, with the help of qualified governmental consultant experts, a report on napalm and other incendiary weapons and all aspects of their possible use” (paragraph 5), and the emphasis placed on the need for wide dissemination of the “principles of respect for human rights applicable to armed conflicts” (paragraphs 6, 7). Resolution 2853 (XXVI), which had many elements in common with the previous one, distinguished itself most markedly by expressing the hope that the second session of the Conference of Government Experts would lead to recommendations “for subsequent consideration at one or more plenipotentiary diplomatic conferences” (operative paragraph 3) and by calling upon “States parties to the existing international instruments to review, as a matter of priority, any reservations they may have made to those instruments” (paragraph 4). For the rest, both Resolutions favoured the continuation by the ICRC of the work which it had initiated for the reaffirmation and development of international humanitarian law applicable in armed conflicts. As for the specific subject of “protection of journalists engaged in dangerous missions in areas of armed conflict”, a matter of special interest to the General Assembly and the Commission on Human Rights since 1970, Resolution 2854 (XXVI) bore witness to the fact that the problems attending realization of the idea of special protection for this particular category of civilians were far from solved. Not only had both Australia and the United States submitted alternative texts for the 1971 draft of the Commission (originally a French proposal) but a number of critical observations, made both in writing by Governments and orally in the debate amounted to expressions of serious doubt as to the 5

6 7

8 9 10

This 12-Power Resolution was sponsored by Austria, Chile, Ecuador, Egypt, Ireland, Kenya, Mexico, Morocco, Norway, Peru, Sweden and Yugoslavia. The requested report on napalm and other incendiary weapons was brought out on 9 Oct. 1972, A/8803. This 3-Power Resolution, introduced by the United States, was co-sponsored by Japan and New Zealand. Despite its general language, this paragraph envisages in particular the reservation of the Soviet Union and other communist States to Art. 85 of the 1949 Prisoners of War Convention, to the effect that prisoners of war will lose their status once they are convicted of a war crime. The United Kingdom, which proposed the paragraph, has meanwhile set the example by withdrawing its own reservation to Art. 68 of the 1949 Civilians Convention regarding the right to impose the death penalty in occupied territory. A/C.3/L. 1902 and 1903. A/8371, annex II; A/8371/Add. 1 and 2. A/8589 (Report of the Third Committee), paras. 15-18.

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very desirability and feasibility of the project, thus confirming the hesitations expressed at the first Conference of Government Experts. The Resolution in its second operative paragraph therefore invited the Commission on Human Rights to reconsider the 1971 draft convention in the light of all these facts. The Commission, not discouraged at all, in its twenty-eighth session, 6 March - 7 April 1972, elaborated a new set of draft articles of an International Convention on the Protection of Journalists Engaged in Dangerous Professional Missions in Areas of Armed Conflict. Having approved these “as the basis for further work”, it transmitted them to the Conference of Government Experts. In the period under consideration, the ICRC also deployed a great many activities in preparation of the second session of this Conference. First to mention, and a major achievement, was the elaboration of two draft protocols: (1) a Draft Additional Protocol to the Four Geneva Conventions of 12 August 1949 (intended to be applicable in international armed conflicts) and (2) a Draft Additional Protocol to Article 3 Common to the Four Geneva Conventions of 12 August 1949 (intended for non-international armed conflicts). These draft texts, together with a commentary in two volumes, were distributed in the early spring of 1972, as the basis for the discussions at the Conference. Then, in accordance with a wish of the 1971 Conference, the ICRC sent out a questionnaire concerning measures intended to reinforce the implementation of the Geneva Conventions of 1949. By the time of the second session of the Conference, this questionnaire, which had been sent out to the Governments of all the States Parties to the Conventions, had drawn the replies of thirty-two Governments. The third preparatory activity consisted in a number of consultations with a variety of persons, both official and private. In this respect, particular importance attached to two conferences which the ICRC organized in this period. On 18-19 November 1971, a consultative meeting of non-governmental organizations was held in Geneva, where representatives of thirty-eight NGOs discussed the main issues involved in the development of international humanitarian law. And the first session of the Conference of Red Cross Experts (The Hague, March 1971) was followed by a second session in Vienna from 20-24 March 1972, attended by representatives of thirty-six national Red Cross and Red Crescent societies and 11 12 13 14

Res. 6 (XXVIII). D-O-1210. D-O-1252/b/e and Add. 1-3. D-1251: Report of the Consultative Meeting of Non-Governmental Organizations on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (18-19 Nov. 1971). One of these NGOs, the International Institute of Humanitarian Law at San Remo, held a seminar from 2-4 Sept. 1971 on “Humanitarian Rules and Instructions to Armed Forces”. The resolution adopted at the end of the seminar was published by the UN Secretary-General as A/8370/ add.1.

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of the League. Here too, all the most important aspects of the questions at issue were discussed and many suggestions were made, a number of them in the form of written amendments to the Draft Protocols, the text of which had by that time been published. The latter Conference in particular proved a most useful preparation for the Conference of Government Experts. It also concluded the ICRC’s series of preparatory activities. 2 The Conference of Government Experts, Second Session, 3 May - 2 June, 1972 The second session of the Conference of Government Experts, to which all the Parties to the Geneva Conventions of 1949 had been invited to send their experts, was attended by delegations from 76 States spread all over the world, and of the Holy See. Among the Great Powers, the People’s Republic of China was the only one absent. The Secretary-General of the United Nations had once again been invited to send his representatives. This time, there were moreover a number of observers from the League of Red Cross Societies and from some national Red Cross societies, this in response to a wish expressed by the Red Cross world to be more directly involved in the law-creating process. The Conference, which held its meetings in the Palais des expositions, had as the basis of its discussions the Draft Protocols and annexed documents submitted by the ICRC, as well as the Draft Articles on the protection of journalists, transmitted by the Commission on Human Rights. It also had before it the documentation which the ICRC had presented already in 1971, plus the report of the ICRC on the first session of the Conference, the Secretary-General’s report on that same event, and the reports of the ICRC on the subsequent conferences

15

16

D-l254: Conference of Red Cross Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Vienna, 20-24 March 1972 (second session): Report on the Work of the Conference, published by the ICRC, April 1972. Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, second session, Geneva, 3 May - 3 June 1972: Report on the Work of the Conference, published by the ICRC, July 1972. Like in 1971, the size of the delegations and the degree of expert knowledge varied considerably, and with that the capacity of delegations effectively to contribute to the work of the Conference. The UN Secretary-General was once again represented by Mr Marc Schreiber, Director of the Human Rights Division. The Report is in two volumes, one containing the report of the proceedings of the plenary sessions and the Commissions, and the other containing the documents submitted by the ICRC to the Conference and the amendments and other proposals submitted by experts during the Conference. References to paragraphs and article numbers are to Vol. I, references to documents numbers (CE/…) to Vol. II. See also the Report of the Secretary-General, A/8781, 20 Sept. 1972.

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of NGOs and Red Cross experts and on the replies sent by Governments to its questionnaire on implementation. The first two days were spent on a general debate in plenary session. Jean Pictet, Vice-President of the ICRC, was again elected as President of the Conference, and Professor Willem Riphagen, leader of the Dutch delegation, was elected one of the Vice-Presidents. The Conference did not find any difficulty in accepting the Rules of Procedure proposed by the ICRC and which were virtually identical to those of the first session. Essential rules for this Conference were therefore, once again, that it would not “adopt any resolutions or make any recommendations” and that any votes taken would be purely indicatory, and the rule that it would “eschew all discussions of a polemical or political nature” (Rule 7, paras. 2 and 3). Neither of these rules met with any great difficulties in practice; in particular the rule about the non-polemical and non-political character of the debate was respected fairly well throughout the Conference. After the two days of general debate the Conference split up into four Commissions of the Whole sitting simultaneously. The subject-matter of Draft Protocol I (international armed conflicts) was divided among Commissions I (wounded, sick and shipwrecked), III (combatants and civilian population, including journalists) and IV (implementation, general and final provisions). Draft Protocol II (non-international armed conflicts) was assigned in principle to Commission II. For the sake of convenience, the proceedings of the Commissions will hereafter be briefly discussed in the order just indicated. 2.1

Commission I

Three items were on the agenda of Commission I: general provisions concerning the protection of wounded, sick and shipwrecked persons, the specific issue of medical air transport, and the question of the position of national Red Cross societies (an item included by the Commission on its own initiative). The first of these questions had been thoroughly examined at the 1971 session, while the question of medical air transport had at that occasion barely been touched upon. At the beginning of its work, the Commission set up a Drafting Committee with a limited membership. The meetings of the Committee were however open to all other members of the Commission. Every draft article was examined three times: in the Commission, in the Drafting Committee, and again in the Commission. As a result of this method, the Commission could conclude its work with the adoption, by a large majority, of a set of carefully considered draft articles for each of the items mentioned above. As for the first question mentioned, the feeling in 1971 had been that the work done on the draft Protocols concerning the protection of wounded and sick and civilian medical personnel had brought the matter to a point where the results could without further preparations be submitted to a future diplomatic

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conference. At the 1972 session it appeared necessary, however, to reopen the debate on many of the questions concerned. Several factors contributed to this development. First, the ICRC had incorporated the 1971 texts (which at the time had been intended to supplement only the Fourth, or Civilians, Convention) in Draft Protocols which now were intended to supplement all four Geneva Conventions. In doing so, the ICRC had moreover rewritten several articles and added completely new ones. And a third, independent factor was the participation of a number of delegations from States which had not been represented in 1971; while this had about the same effect on the composition of all four Commissions (although several of the smaller delegations found it impossible to attend all Commissions), its effect on the debate was most marked in Commission I. This, as the only one, had already in 1971 discussed and approved concrete draft articles the essence of which could be found again (notwithstanding the modifications mentioned above) in the texts now submitted to it, and but for the participation of new delegations there would have been little reason to reconsider notions accepted a year ago. In another respect the task of the Commission was more limited than in 1971: as said before, this time it was expected to examine only the problems relating to international armed conflicts. A major part of the general provisions was taken up by the question of the position of duly recognized civilian medical establishments and units and their personnel. The principle accepted at the first session, that protection should be extended to categories not covered by the Fourth Convention of 1949, was reaffirmed, and an important further extension was added when it was agreed that temporary medical establishments, units and personnel should be accorded the same protection as permanent ones for the duration of their employment as such. On the other hand, the Commission did not accept a suggestion to extend this protection to individual members of the medical profession such as the village doctor; it was feared that in the event of an armed conflict this would lead to an uncontrollable proliferation of Red Cross emblems and thus to a fatal weakening of the protection afforded by this emblem. It was therefore decided not to extend the protection beyond the (permanent or temporary) personnel of duly recognized medical establishments and units and of national Red Cross societies. It is worth noting moreover that the idea, propounded in 1971, to use the Staff of Aesculapius as a means of identification for the category of the “village doctors” was not taken up again. The Red Cross emblem, it was agreed, could be used for all of the medical establishments and units, medical transport and medical personnel falling 17 18 19

Op. cit. note l, at p. 75. Paras. 1.20, 1.22, 1.31, 1.37; Commission draft Articles 14, 16, 18. Para. 1.40.

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under the Protocol, provided always that such use be authorized by the competent national authorities and subject moreover to the reservation that temporary establishments, units, transport or personnel display the emblem only while actually employed for the purposes set out in the Protocol. In 1971, the principle had already been accepted that the civilian population shall be permitted to come to the aid of the wounded and sick, of whatever nationality, and that its duty is to respect such war victims. The Commission had no difficulty in reaffirming this principle. In doing so, it replaced the words “of whatever nationality” by the even more unequivocal phrase “even if they belong to the adverse Party.” Another, more important modification concerned the scope of the principle; while in the 1971 version this only applied to “the wounded and sick”, it was now extended to cover a far wider category defined as “other persons who are or may be in serious need of medical attention.” Another interesting and topical matter is the principle of protection of medical duties in general, a subject on which the Geneva Conventions of 1949 are silent. In 1971, the Commission had accepted a draft provision on this subject proposed by the ICRC. In the 1972 session the text was amended slightly, so as to bring out clearly that the purport of this principle was not to protect a specific category of persons (and notably the medical personnel attached to the medical establishments and units mentioned earlier) but rather a specific type of activities. According to the draft Article as it was finally accepted by the Commission, no person shall be punished in any circumstances for carrying out medical activities compatible with professional ethics, nor shall any person engaged in medical activities be compelled to violate any provision of the Geneva Conventions or annexed Protocol, or to carry out work contrary to professional rules or to abstain from acts demanded by such rules. The draft Article finally specifies that no person engaged in medical activities shall be compelled to inform the adversary about the “wounded, sick and shipwrecked under his care”, exception solely being made for “compulsory medical regulations for the notification of communicable diseases.” The second major issue before Commission I, medical air transport, is both more technical and more controversial in character than the questions discussed so far. For its more particularly technical aspects a Technical Sub-Commission was set up, which elaborated a number of recommendations concerning the marking and identification of medical transports, and of medical aircraft in par20 21

22

Commission draft Articles 14, 16, 18. Commission draft Art. 20, referring to draft Art. 12 which defines the categories of persons qualifying for protection and care. After the phrase quoted in the text above, that Article continues: “such as maternity cases and newborn infants together with shipwrecked persons at sea, the infirm and expectant mothers”; a curious collection indeed! Commission draft Art. 19.

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ticular. These recommendations, concerning visual (Red Cross emblem, flashing blue light) and non-visual identification (radio message, prefixed by the word “MEDICAL”, transmitted on an agreed or specific frequency at frequent intervals; use of Second Surveillance Radar) were largely followed by the Commission. In particular, the Commission agreed that the use of these various means of identification should be recommended rather than prescribed, except for the use of the Red Cross emblem in case of agreed overflight of enemy-controlled territory. For the rest, the “Recommended International Standards, Practices and Procedures for the Identification and Signalling of Medical Aircraft” were annexed to the set of draft Articles elaborated by the Commission. While it thus proved feasible to find acceptable solutions for the technical problem of identification of medical aircraft, the Commission encountered far greater difficulties in its attempts to settle the question of principle of whether the protection of medical aircraft should be extended beyond the limits set in 1949. Of course, it was not difficult to agree that in the meantime, technical developments had vastly increased the usefulness and importance of medical air transport both in the battle area and in the rear. Nor could there be doubt that the articles of the First and Fourth Geneva Conventions of 1949 protecting aircraft exclusively employed for the removal of wounded and sick, the infirm and maternity cases, and for the transport of medical personnel and equipment, had largely remained a dead letter since in practice aircraft are rarely if ever permanently employed only for these purposes. Now, whereas the extension of the category of protected aircraft with aircraft only temporarily employed on a medical mission found ready acceptance in the Commission, a sharp division of opinion became apparent about the possible effect, in terms of a relaxation of the conditions for protection, to be awarded the increased usefulness of medical aircraft. One group of experts (with the Americans foremost among them) wanted to do away to the maximum with the requirement, embodied in the Geneva Conventions, of previous agreement between the belligerent Parties about the height, time and route of any flights of medical aircraft. In particular for the battle area they advocated a right for medical aircraft to operate subject only to tacit agreement or even without any prior agreement. These views were however severely criticized by another group of experts, first of all from developing countries, who advanced the curious argument that such a freedom of action for medical aircraft would discriminate against “small States and liberation movements” which “did not have modern technical means of air transport.” This argument not only fails to appreciate that (as observed by an expert from the first group) “under the principle of 23 24 25 26 27

Para. 1.66. Articles 36 and 37/I, 22/IV. Para. 1.72, Commission draft Art. 23. CE/COM I/1; para. 1.87. Para. 1.67.

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non-discrimination the wounded of both sides benefit from rapid air evacuation” but also that the weaker or technologically less advanced Party nonetheless may have medical aircraft operating on its side, and the chance of this happening would be greatly enhanced if the organizations likely to furnish such aid could count on a rule protecting their aircraft from direct attacks. Be this as it may, another argument of a totally different order was that a Party to the conflict would regard the medical aircraft of the adversary as enemy aircraft in the first place, and to grant such aircraft a right of overflight without prior specific agreement would be tantamount to creating a grave risk of their being used for purposes of reconnaissance or other hostile acts endangering the position of the Party concerned. The outcome of the debate was that the views of those opposing an unqualified freedom of action for medical aircraft prevailed. Nonetheless, the qualifications ultimately accepted by the Commission amounted to a considerable improvement of the situation created in 1949. Prior agreement would only be required for flights “over territory physically under the control of the adverse Party” or “in the forward part of the battle area under the control of friendly forces, and in areas where such control is not clear.” Agreement, between the “competent authorities” and in the case of the battle area between the “local military authorities”, could come about “in every possible way” and without any formalities being required. And the draft Article on the battle area provides expressly that “even if prior agreement has not been obtained, a medical aircraft shall not be the object of attack by any person who has positively recognized it as a medical aircraft.” The last item on the agenda of Commission I, the position of national Red Cross societies and other humanitarian bodies, did not give rise to much controversy. The Commission eventually adopted a text prescribing that Parties to a conflict “shall extend to the National Red Cross (Red Crescent, Red Lion and Sun) Societies and to International Red Cross bodies facilities and assistance necessary for the performance of their humanitarian activities to be carried out in accordance with the Red Cross principles as defined by International Red Cross Conferences.” “Humanitarian activities” were explained to mean “medical relief and other purely humanitarian activities to be carried out impartially in favour of victims of armed conflicts.”

28 29 30 31

Ibid. Ibid.; see also para. 1.87. Commission draft Articles 25, 26. Paras. 1.106-1.109 and annexed draft Article.

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Commission III

The parts of Draft Protocol I to be examined by Commission III were entitled “combatants” and “civilian population”; taken together, these items encompassed a major part of the “law of The Hague”. Besides these subjects, the Commission had on its agenda the protection of journalists on dangerous missions. The controversial nature of many of the questions before Commission III prevented its adopting a procedure as technically perfect as the one applied by Commission I. Instead of having a drafting committee in the true sense, the Commission had to content itself with setting up a Co-ordinating Committee, with the far more modest task of assisting the authors of the many amendments introduced in the course of the debate in reconciling, wherever possible, their different points of view in order to reduce the number of amendments. There was, moreover, no question of more than one reading of the draft Articles, so that combined amendments resulting from the efforts of the Co-ordinating Committee or of other, informal working groups were not examined by the Commission if (as would normally be the case) the discussion on the draft Article in question had already been closed. The conclusion is that Commission III, although discussing on the basis of concrete draft Articles, did not come anywhere near the stage of actual drafting (except for the specific subject of civil defence organizations, which was examined in detail by a Sub-Commission set up for that purpose). Notwithstanding all that, the work of Commission III should certainly be positively appreciated. The discussions were generally held in a constructive spirit and, whilst the precise meaning or the elaboration into detailed rules of the basic principles set out by the ICRC might be a matter of controversy, the principles themselves were not really contested. In particular, the principles of limitation of means of warfare and of distinction between belligerents and civilian population found the widest possible acceptance, and there was a general readiness to go further than a mere reaffirmation of these basic principles (although obviously the length to which different experts wanted to go in specific cases differed widely). As noted above, the greater part of the subject-matter before the Commission belonged to what traditionally is called the law of The Hague. The Draft Protocol was, however, described both in its title and in its opening Article as supplementary to the Geneva Conventions of 1949, and its drafters had studiously refrained from so much as hinting in the text at a possible relationship with the Hague Conventions of 1899 and 1907 respecting the Laws and Customs on Land, with annexed Regulations. That such a relationship did in fact exist was abundantly plain; indeed, the representative of the ICRC in introducing the Part concerning “combatants” pointed out that the ICRC had considered it useful to reaffirm certain principles of the Hague Regulations by reproducing them with the least 32

Para. 3.5.

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possible changes in Draft Protocol I. Not surprisingly, many experts pointed to the necessity of a clarification of this relationship. Whether this will require no more than a general formula such as the one found in Article 154 of the Fourth Geneva Convention of 1949, or rather a provision spelling out in some greater detail the impact of the Protocol on specific Articles of the Regulations, will be a matter for further study. Under the heading “combatants” the Commission examined successively the issues of weapons, methods of warfare and treatment of certain specified categories of enemies. With respect to weapons, the ICRC had refrained from suggesting any specific prohibitions. Instead, it had confined itself to proposing a reaffirmation of the principles, expressed in Articles 22 and 23(e) of the Hague Regulations, that belligerents have no unlimited choice of means of warfare and that it is forbidden to use weapons calculated to cause unnecessary suffering – or, the ICRC proposal added, particularly cruel methods and means: a phrase which on account of its considerable vagueness was received with something less than enthusiasm in the Commission. In addition to these two principles it was proposed to lay down, in language borrowed from the Martens clause in the preamble to the Hague Convention respecting the Laws and Customs of War on Land, of 1899/1907, that in cases not provided in the Protocol and pending the adoption of fuller regulations “the principle of humanity and the dictates of the public conscience shall continue to safeguard populations and combatants.” In explanation of this marked reticence, a representative of the ICRC argued that other fora were occupied with the problems of arms limitations and disarmament, and so far it had never been attempted to include prohibitions against specific weapons (which were liable to be subject to reprisals or even reciprocity) among the absolute norms of the Geneva Conventions. He also pointed out that the effect of the Geneva Conventions and the Protocol already was indirectly to limit or prohibit the use of weapons by imposing respect for certain categories of persons or objects. If, therefore, specific weapons prohibitions were considered necessary, he would prefer to see these incorporated in a separate instrument. These views were shared by a number of experts who, though convinced of the cruelty of many modern means of warfare, were not ready to accept prohibitions of certain such means in the context of the Draft Protocol. However, this group accepted without reserve the principles outlined in the ICRC proposal and even made the interesting suggestion to add a paragraph laying down that “in the development of new weapons or methods of warfare States have an obligation to determine whether the use of a particular new weapon or method of warfare will 33 34 35 36

Para. 3.7. Para. 3.13. ICRC draft Art. 30 para. 3. Para. 3.14.

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be compatible with the principle that methods and means of warfare shall not be employed in a manner calculated to cause unnecessary suffering.” The effect of this clause would be to shift the discussion about the legality or illegality of certain means of warfare from the courtrooms to the drawing table, that is, from the judging of weapons actually used to the decision whether to produce them at all. And an important side-effect would be that the clause would do away once and for all with the argument, used even at the time of the nuclear attacks on Hiroshima and Nagasaki, that new weapons are not covered by pre-existing rules of the law of war. Those other experts who considered the Article as drafted by the ICRC insufficient tabled a number of amendments aimed at broadening its scope. The proposals ranged from the express prohibition of nuclear, bacteriological and chemical weapons, through the general prohibition of “means and methods which affect military objectives and protected persons or civilian objects indiscriminately” or which “destroy the natural human environmental conditions”, to the express prohibition of delayed-action weapons, incendiary weapons containing napalm or phosphorus, and fragmentation bombs. The authors of the last-mentioned amendment argued that, whereas the aim of disarmament talks (where strategic considerations prevail) is to achieve the reduction or elimination of the stockpiles of weapons while maintaining the balance between the main opponents, the present ICRC conference started from humanitarian concerns and would therefore be fully justified in seeking the prohibition of the use in war of certain cruel weapons. An argument of doubtful value, since the prohibition of wartime use of certain weapons has as much the character of a disarmament measure – and will be assessed as such from the point of view of its effect on the military balance – as prohibitions against the production, stockpiling etc. of weapons. One conclusion emerging with particular clarity from the debate on weapons was that the subject required further study. In accordance with this conclusion, the ICRC was asked, first by a number of experts in Commission III and subsequently by many speakers in the closing session of the Conference, to con37 38 39

40 41 42

CE/COM III/C 56, introduced by the Federal Republic of Germany, Australia, Belgium, Canada, the United States and the United Kingdom. See also para. 3.21. CE/COM III/C 17 (Romania), CE/COM III/C 44 ( Jordan); para. 3.18. CE/COM III/C 2 (Poland), CE/COM III/C 6 (German Democratic Republic, Hungary, Czechoslovakia), CE/COM III/C 17 (Romania), CE/COM III/C 33 (Egypt, Finland, Mexico, Norway, Sweden, Switzerland, Yugoslavia), CE/COM III/C 44 ( Jordan), CE/COM III/C 57 (Spain); para. 3.19. CE/COM III/C 2 (Poland), CE/COM III/C 6 (German Democratic Republic, Hungary, Czechoslovakia), CE/COM III/C 17 (Romania); para. 3.19. CE/COM III/C 33 (Egypt, Finland, Mexico, Norway, Sweden, Switzerland, Yugoslavia). Para. 3.20.

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vene in the course of its further preparations for a diplomatic conference a meeting of legal, military and medical experts to examine “the question of express prohibitions or limitations of use of such conventional weapons as may cause unnecessary suffering or may be indiscriminate in their effect.” Among the draft Articles relating to methods of warfare, the Article prohibiting perfidy deserves some attention. The text proposed by the ICRC contained both general definitions of perfidy and ruses of war, and specific examples of each of these notions. Acts of perfidy were defined as “unlawful acts betraying an enemy’s confidence”, ruses of war as “acts which, whilst infringing no recognized rule, are intended to mislead the enemy or to induce him to act recklessly.” These general definitions, which unquestionably are of a nature to clarify the notions at issue, apparently were acceptable in principle to many experts: most amendments related to the lists of examples. A general criticism of the definition of perfidy concerned the word “unlawful”, which was considered superfluous. A rather more drastic change was proposed by a group of experts from nine countries who wanted to define perfidy as “acts designed to mislead the adversary into the belief that protection under international law will be granted.” While this may seem an even closer approximation of the perfidious act than the mere reference to “acts betraying an enemy’s confidence”, it is in reality a rather more confusing formula. What is the adversary led to believe: that he will be granted protection, or that he will himself have to grant protection? The latter possibility could only with difficulty be brought under the language used; yet, several of the examples given (such as the feigning of a situation of distress or the disguising of combatants as civilians, with the intention of committing or resuming hostilities) are precisely instances where the supposedly protected party is the deceiver. Indeed, the term “protection under international law” seems far too technically precise to be of any great use in the present context. Two matters were of particular interest in the draft Articles relating to the treatment of enemies: the fate of occupants of aircraft in distress, and the position of guerrilla fighters. As for the first-mentioned subject, the ICRC proposed to provide that such persons “who parachute to save their lives, or who are compelled to make a forced landing, shall not be attacked during their descent or landing unless their attitude is hostile.” While the principle underlying this draft rule was widely accepted, its wording gave rise to much criticism, as it seemed particularly difficult to determine such elements as a “hostile attitude” of an aircraft occupant parachuting down or making a forced landing. An amendment which 43 44 45 46

CE/SPF/2 (proposal introduced in plenary session by 19 delegations); paras. 3.20, 5.8-5.11. Draft Art. 31. CE/COM III/C 70 (Federal Republic of Germany, Australia, Belgium, Brazil, Canada, United States, Israel, Philippines, Republic of Viet-Nam); para. 3.26. ICRC draft Art. 36.

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drew considerable support was to replace the entire complicated formula with a provision to the effect that “the occupants of an aircraft in distress shall never be attacked when they are obviously hors de combat” – a formula as lapidary as the previous one was complicated. A Dutch amendment of a totally different order and which approached the matter from an eminently practical point of view was to prescribe that occupants of aircraft in distress parachuting down with orange-coloured parachutes would not be attacked. The orange-coloured parachute would then act as a sort of distinctive sign indicating that its bearer (or, rather, its pay load) was, in the terms of the first amendment, “obviously hors de combat”. As was only to be expected, the question of the position of guerrilla fighters gave rise to far greater controversy. True, the principle expressed in the ICRC proposal that guerrilla fighters taking part in an international armed conflict should be treated as prisoners of war was not itself contested. It was argued that conferring such treatment could contribute to preventing an escalation of violence, and in the past it had never proved possible to stop guerrilla warfare by refusing prisoner-of-war treatment to captured guerrilla fighters. But opinions diverged sharply when the conditions of such treatment were discussed. The ICRC proposal listed three conditions, which amounted to a mitigated version of the conditions spelled out in Article 1 of the Hague Regulations and Article 4A(2) of the Third Geneva Convention of 1949: (a) compliance with the requirements of the principles of the law of armed conflicts and of the rules of the Protocol, (b) in their operations to show their combatant status by openly displaying their weapons or to distinguish themselves from the civilian population by wearing a distinctive sign or by any other means, and (c) being organized and under the orders of a commander responsible for his subordinates. Each of these conditions was criticized from two sides, one side aiming to make the wording more flexible or even to delete the whole condition, and the other wanting to restore the more stringent language of the Hague Regulations. It may perhaps be said that a majority in the Commission tended towards greater flexibility, but the number and weight of those holding the opposite view was by no means negligible. To reconcile these divergent tendencies seems out of 47 48 49 50

CE/COM III/C 30 (Belgium); para. 3.44. CE/COM III/C 8; para. 3.45. ICRC draft Art. 38. Paras. 3.64-3.66. A Norwegian amendment (CE/COM III/C 15) went farthest in doing away with the existing conditions; it replaced these by the following: that the level of hostilities make application of the Protocol a humanitarian necessity, that the Party to the conflict to which the guerrillas are attached declare itself ready to apply the Geneva Conventions and the Protocol, and that the guerrilla fighters be organized and under the orders of a commander responsible for the conduct of his subordinates. Least generous towards the guerrillas were the experts of the United Kingdom (CE/COM III/C 42).

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the question; the only solution may lie in finding a compromise formula which is acceptable to a sufficiently great number of Governments and which is not so repugnant to other Governments that it would deter them from ratifying the Protocol. A basis for such a compromise might be found in the text proposed by the ICRC and in the common concern of all those taking part in the debate that the requirements for prisoner of war treatment should effectively contribute to protecting the civilian population against the dangers of hostilities. The second main item before Commission III, being the part of Draft Protocol I entitled “civilian populations”, gave rise to interesting discussions about the general principle of protection of the civilian population and objects of a civilian character, the definition of these concepts as well as of the related concept of “military objective”, and the detailed rules for protection of the categories mentioned (subdivided into general and special protection). The general principle of protection of the civilian population and objects of a civilian character against the dangers resulting from hostilities found the widest possible adherence. A question was whether it should find expression in a separate Article (as the ICRC had proposed). According to some experts, this might lead to ambiguity since the detailed rules for protection, contained in subsequent draft Articles, repeated the principle in rather less absolute terms. An amendment of the same purport was to tone the principle down to the engagement that parties to a conflict “shall, to the maximum extent feasible, endeavour to protect” the categories mentioned. On the opposite side of the scale were two amendments which aimed at strengthening the principle. One, introduced by the experts of Norway, placed it under the aegis of an even more basic principle that “fundamental human rights continue to apply in all situations of armed conflicts.” The other was submitted by the experts of Romania, a delegation which exerted itself throughout the Conference to obtain maximum protection for the civilian population of an invaded country. Their proposal at this juncture was to provide “effective and complete protection” for the civilian population against “the dangers resulting 51

52 53 54

Paras. 3.57, 3.60. The different ways in which this protection can be sought, are demonstrated in two Norwegian amendments. One, quoted in the previous footnote, virtually abolished the traditional conditions for POW treatment for guerrillas; the other proposed to lay down in the draft Article on perfidy that “the creation, prior to attack, of an impression with the enemy of being a non-combatant” would be among the acts betraying an enemy’s confidence and therefore constituting perfidy (adding, however, that “attacks from ambush, even if carried out in civilian clothing are not prohibited”) (CE/COM III/C 55). – On the question of treatment of guerrilla fighters, see also Michel Veuthey, “La guérilla: Le problème du traitement des prisonniers”, in Annales d’études internationales (1972) at p. 119. ICRC draft Art. 40. CE/COM III/PC 2 (United States); para. 3.111. CE/COM III/PC 37; para. 3.112.

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from military operations.” This formulation comes as close as possible to the (utopian) idea of absolute immunity for the civilian population. The question of definition was discussed on the basis of ICRC proposals which gave a negative definition of the civilian population (being all those who are neither members of the armed forces nor take a direct part in hostilities) and positive definitions both of objects of civilian character and of military objectives (respectively, all objects which by their nature or use are destined for the civilian population, and those objectives which by their nature or use contribute effectively and directly to the military effort of the adversary, or which are of a generally recognized military interest). It was generally agreed that the civilian population should be defined in a negative manner. Some feared, however, that the definition proposed by the ICRC would have the effect of creating an intermediate category of persons belonging neither to the civilian population (because they would take a direct part in hostilities) nor to the recognized belligerents (because they would not meet the conditions for such status as spelled out in the Hague Resolutions, the Third Geneva Convention of 1949, and the Draft Protocol). They therefore proposed to define civilians as all persons not falling within one of the categories enumerated in the relevant Articles of the Third Convention and the Draft Protocol, and to provide furthermore that the persons so defined would enjoy the protections set out in the part of the Draft Protocol dealing with the civilian population “unless and for such time as they take a direct and immediate part in hostilities.” The “protections” mentioned in this proposal are those against direct attack and other forms of wartime violence. In this respect, the difference between the two proposed definitions seems to be that the latter formula would leave no doubt that a participant in hostilities not qualifying for prisoner-of-war status cannot be made the object of attack outside the period of his “direct and immediate” participation, whereas the language used in the former proposal would leave room for a slightly less benevolent interpretation. It should be pointed out that neither of the two proposed definitions had a bearing on the question of the treatment after arrest or capture of such “illegitimate belligerents”. In this connexion it is worth mentioning that in the course of the discussions on prisoner-of-war treatment for guerrilla fighters it had been urged from many sides expressly to provide that “any person not entitled to more favourable treatment under the Conventions and the present Protocol shall, in the event of his capture, internment, or detention in relation to the armed conflict, be afforded treatment not less favourable than that laid down in Article 3 common to the Conventions” (i.e., the Article laying down minimum standards for the event 55 56 57

CE/COM III/PC 42; para. 3.112. ICRC draft Articles 41-43. CE/COM III/PC 78 (Federal Republic of Germany, Australia, Belgium, Canada, United States, United Kingdom); paras. 3.117, 3.123.

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of non-international armed conflict). A provision to this effect would obviously supplement either of the proposed definitions of the civilian population, by extending the minimum protection of Article 3 to those who under either formula would be excluded from the more complete protection accorded prisoners of war or real civilians. The other major problem in defining the civilian population was the scope to be given such a definition. Should it cover those who, although not taking part in the actual fighting, contribute to the war effort in other important manners? This led, first of all, to a demand for clarification of the concept of direct participation in hostilities, and it was suggested that this might be illustrated by giving examples of activities constituting such participation (and the expert in question mentioned here spying, recruitment, propaganda and the transport of arms and of military personnel, as opposed to such activities as the providing of aid, medical care or food supplies for protected persons such as wounded guerrilla fighters). It also led to a debate about the position of the workers in the war industry and similar groups. There was widespread support for the position, taken by the ICRC, that such categories of persons cannot themselves be made the object of direct attack (although they run all the risks of the situation whenever they are present in the factories, laboratories and similar localities which may be regarded as military objectives and attacked as such). The Romanian experts even wanted to make the point explicit by providing that “persons whose activities could contribute directly to the military effort do not thereby lose their status as civilians.” In fact, only the experts of the Republic of Viet-Nam formulated a diametrically opposite view when they proposed to define civilians as those persons not covered by Article 4 of the Third Convention “and who, moreover, are not participating in the war effort of one of the Parties to the conflict.” An amendment introduced by the Philippine experts, finally, would exclude government officials and employees of the Ministry of Defence from the category of civilians. An element of considerable importance in the draft Article of the ICRC was the proposed rule that in case of doubt as to their status persons would be presumed to belong to the civilian population. This rule, when faithfully applied, would have a marked effect on certain aspects of contemporary military practice, especially in guerrilla-type situations; in fact, it would do away with the current

58 59 60 61 62

CE/COM III/C 63 (Federal Republic of Germany, Australia, Canada, United States, United Kingdom); paras. 3.58, 3.68. Para. 3.116. CE/COM III/PC 43; para. 3.120. CE/COM III/PC 68. CE/COM III/PC 21.

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(and often understandable) practice of “shooting first and asking questions later.” Yet, the proposal met with no opposition from any side in the debate. As regards the definitions of objects of a civilian character and military objectives, I confine myself to the question of what decides the civilian character of an object: its destination and use, or the military advantage to be gained by its destruction? The ICRC proposal was slightly confusing in that it provided, on the one hand, that objects of a civilian character are those objects which by their nature or use are destined for the civilian population, and, on the other hand, that objects of a civilian character shall never be attacked “provided they are not used directly and mainly for a military purpose.” So much is in any event clear from these formulas that the element of actual use played a dominant role in the proposals of the ICRC. This criterion of use was accepted as fundamental by a number of experts, and several amendments merely aimed at bringing out more clearly what, according to the experts in question, were its essential characteristics. Numerous experts, however, wanted to supplement this with the criterion of military advantage. A characteristic proposal was to define military objectives as “those which by their nature or use contribute effectively and directly to the military effort of the adversary, or the complete or partial destruction, capture or neutralization of which, in the circumstances ruling at the time, offer a distinct military advantage.” “Civilian objects” would then be those objects which are not military objectives. The last-mentioned definition is certainly more in line with technical military thinking. Its weakness from the legal point of view lies in the wide power of appreciation it leaves to military commanders. An expert who was strongly opposed to the proposed amendment pointed out that “the military commander could well argue that the destruction even of purely civilian objects, in particular circumstances, could give him a distinct military advantage.” True; to take a classic example, a house may change into a military objective not only when it is used by the adversary, e.g., as a headquarters, an observation post or a location where snipers are posted, but also when its destruction is necessary in order to clear a field of fire. While from one point of view this is no more than a simple military fact, from another point of view it constitutes a threat to the very idea of distinction on the basis of objective criteria between objects that may and objects that may not be attacked.

63 64 65 66 67

ICRC draft Art. 41 para. 4. ICRC draft Articles 42, 47. CE/COM III/PC 4 (United States), CE/COM III/PC 40 (Denmark); paras. 3.129, 3.133. CE/COM III/PC 115 (Australia, Belgium, Korean Republic, United States, Philippines, United Kingdom). Para. 3.141.

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It remains to be seen whether it will prove feasible to find definitions for the notions of military objective and civilian object which are sufficiently objective to inspire confidence to the non-military and sufficiently flexible to satisfy the military. Under the heading of general protection of the civilian population, the ICRC had in particular proposed express prohibitions of terror attacks, indiscriminate attacks and reprisal attacks. The principle of these prohibitions was widely accepted, but their formulation gave rise to quite some difference of opinion. Thus, while the Romanian experts wanted to prohibit “acts of terrorism” and “acts which are likely to harm civilians and military objectives alike”, a joint proposal of six Western delegations referred to “attacks intended to terrorize the civilian population” and “attacks which are intentionally launched indiscriminately against civilians and military objectives.” Apart from the difference between “acts” and “attacks” (the latter being a specific form of acts, which the ICRC in its proposals had defined as “acts of violence, whether offensive or defensive, committed against the adversary by means of weapons, in the course of hostilities”), the proposed formulas differ most conspicuously in that the former is objective in character whereas the latter is made dependent on the subjective element of intention of the attacking party. While a lawyer might be inclined to prefer the objective definition since that would prevent the attacker from all too easily escaping responsibility by merely denying intention, one may on the other hand have every understanding for the wish to introduce the element of intention because this would, the other way round, diminish the possibilities for the attacked party to make propagandistic abuse of the emotionally loaded terms of “terrorism” and “indiscriminate attack”. An additional remark is that the meaning of the latter terms is far from certain. Thus, the term “terrorism” is used to indicate the most diverse activities, ranging from the assassination of a local political leader to the systematic bombardment of enemy cities. And the range of possible interpretations of what constitutes “indiscriminate” attack can best be demonstrated by juxtaposing the original ICRC proposal which referred to “attacks which, by their nature, are launched against civilians and military objectives indiscriminately” and the understanding of the experts from the U.S.A. that “indiscriminate attacks are those attacks which have no specific military objective.” Obviously, the latter formula was designed to avoid the effect which some experts feared the ICRC proposal would have, of indirectly forbidding certain weapons “which it was not 68 69 70 71 72

CE/COM III/PC 46. CE/COM III/PC 106 (Federal Republic of Germany, Australia, Belgium, Canada, United States, United Kingdom); paras. 3.159, 3.160. ICRC draft Art. 44. ICRC draft Art. 45(3). CE/COM III/PC 110.

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within the Commission’s competence to study.” Be this as it may, it seems in any event important that these concepts are somewhat clarified in future deliberations. The question of reprisal attacks gave rise to some controversy. The ICRC had made a distinction in its proposals between the civilian population and objects of civilian character; whereas reprisal attacks against the civilian population would be prohibited, only the special category of “objects indispensable to the survival of the civilian population” would enjoy a similar protection. Objections against this differentiation had already been raised at the Vienna Conference of Red Cross Experts, where the present author had argued that among the forms of belligerent reprisals thus far not outlawed by any existing treaty provision the one type realistically to be expected in future armed conflict was reprisals against the civilian population; and, if it was now thought feasible to prohibit this type of reprisals, a similar prohibition could certainly be formulated with respect to reprisals against all objects of civilian character without exception. Several experts at the Geneva Conference endorsed this view and proposed the complete prohibition of all reprisals against objects of civilian character as well as against the civilian population. Apart from this question of the scope of a possible prohibition, another matter of even more immediate concern was whether the principle of the prohibition would be accepted at all. Obviously, this question is narrowly connected with the “counter-city strategy” of the nuclear Powers. Notwithstanding the existence of this strategy and the widespread recognition of its significance for the prevention of major war, the UN General Assembly had already in December 1970 included the prohibition of reprisals against the civilian population among the principles of the law of armed conflict enumerated in its Resolution 2675 (XXV) on Respect for Human Rights in Armed Conflicts. Likewise, during the debate in Commission III many experts declared themselves in favour of the prohibition, proposed by the ICRC, of “attacks directed against the civilian population or individual civilians by way of reprisals.” However, acceptance of the proposed rule was certainly not unanimous. Some experts confined themselves to suggesting that the matter really fell within the competence of another Commission (viz., Commission IV, which had the general question of reprisals on its agenda, under the heading of general provisions concerning the execution

73 74 75 76 77 78

Para. 3.155; CE/COM III/PC 50 (Italy). ICRC draft Articles 45(4) and 48(1). Report of the Vienna Conference (supra, note 14), p. 34. CE/COM III/PC 32 (German Democratic Republic), CE/COM III/PC 47 (Romania); para. 3.177. See op. cit. note 1, at p. 88. Para. 3.161.

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of the Geneva Conventions and the Draft Protocol). Two delegations went further: the experts of the United States proposed to delete the provision in question, and the experts of the United Kingdom made the explicit suggestion to exclude from the proposed prohibition reprisal attacks against the civilian population “in response to deliberate attacks on the civilian population or individual civilians by the adversary.” This last-mentioned suggestion was strongly contested by another expert, who argued that “the rule of reciprocity did not apply” in this case. True; but the peculiarity of reprisals is precisely that they do not depend for their justification on any “rule of reciprocity”. The joint proposal eventually introduced by six Western delegations, including the United Kingdom and the U.S.A., was silent on the question of reprisals. As was explained in a note, the co-sponsors had not reached agreement on a proposal on their prohibition. It is to be hoped that the relatively small number of States which this time were unwilling, or hesitated, to subscribe to a prohibition of reprisals against the civilian population, will reconsider their position. For, no matter how useful or necessary the nuclear balance of terror and the counter-city strategy may be for the prevention of major war, it seems hard to deny that to carry through the threat and in fact to annihilate a significant part of the enemy civilian population would amount to nothing but senseless destruction. Under the same heading of general protection falls the question of precautionary measures connected with (the possibility of ) attacks against military objectives. Under this heading, the ICRC had listed, on the side of the attacker, target identification and warning of the civilians threatened as well as the duty to avoid disproportionate damage. On the side of the attacked party, the general duty would be to take the necessary precautions against dangers resulting from attacks. The discussion on these topics showed again the difference in appreciation resulting from a military or a humanitarian approach. For the military, the proposed rules would soon appear too restrictive, whereas the advocate of the humanitarian approach would still be less than satisfied. As a typical example of the military approach I mention an amendment to the proposed rule on proportionality, introduced by the experts of the United States. According to the proposal of the ICRC, the obligation would be to refrain 79 80 81 82 83 84 85 86

Ibid. CE/COM III/PC 6. CE/COM III/PC 29. Para. 3.161. See on this question this author’s Belligerent Reprisals, 1971, in particular pp. 24-25 and 362-363. CE/COM III/PC 106. See op. cit. note 82, pp. 353-361. ICRC draft Articles 49-51.

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from ordering or launching an attack when the probable losses and destruction suffered by the civilian population and objects of civilian character would be disproportionate to the concrete military advantage sought. The sponsors of the amendment wanted to replace this by the formula that “those who plan military operations shall take into consideration the extent of destruction and probable casualties which will result and to the extent consistent with the necessities of the military situation seek to avoid such casualties or destruction.” Obviously, to “seek to avoid” is a far less stringent obligation than to “refrain”, and the “concrete military advantage sought” leaves far less room for discretionary assessment than the “necessities of the military situation”. An example of the opposite tendency may be seen in the amendment proposed by the Romanian experts to the provision in the ICRC draft that attackers “shall warn, whenever circumstances permit, and sufficiently in advance, the civilians threatened, so that the latter may take shelter.” The amendment was to delete the words “whenever circumstances permit”. This would change the conditional obligation to warn into an absolute one, but at the same time the resulting rule would be only too likely to be broken whenever the situation would require a surprise attack. Indeed, it was even argued by opponents of the amendment that surprise attacks often were less damaging to civilians. At this juncture in the debate, one expert confessed that he had great difficulty to reconcile the two tendencies; however, he added, “in so far as the present Conference was concerned, the accent had to be laid on the protection of civilians.” While this might seem a commendable attitude and indeed a faithful rendering of the purpose of the Conference, it should be recognized that whenever the “accent on the protection of civilians” would assume the proportions of an over-emphasis on the humanitarian aspects of the situation to the detriment of the military interests involved, the result would be a rule highly satisfactory from a humanitarian point of view but which in practice would be set aside at the earliest opportunity. Here as in the law of armed conflict in general the only solution lies in a careful weighing of the two conflicting interests and in doing equal justice to both. Commission III turned next to the subject of localities and objects under special protection. As for localities, the Draft Protocol made a distinction between non-defended and neutralized localities, the former being situated in a zone of military operations and the latter outside such a zone. In either case, special protection would rest on agreement and demilitarization. All armed forces and other combatants as well as mobile weapons and other mobile military equip87 88 89 90

CE/COM III/PC 11. CE/COM III/PC 54; see also CE/COM III/PC 46 of the same delegation, and cf. CE/COM III/PC 89 (Spain). Para. 3.190. Para. 3.191.

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ment would have to be evacuated from such localities, and fixed military installations would have to be left unused. For the neutralized locality, an additional condition would be the ceasing of any activity connected with the military effort. Agreement could be express or tacit or could even consist of reciprocal and concordant declarations. In the case of a neutralized locality there would again be an additional requirement, viz., that the agreement would fix the methods of supervision. These differences between the two types of specially protected localities are understandable: in the system of the ICRC the non-defended locality would be an ad hoc arrangement for the protection of civilians, wounded and sick finding themselves in a zone of actual combat and therefore exposed to immediate danger, whereas the neutralized locality would extend protection to persons not so immediately exposed to the dangers of war except from the air. Indeed, the proposed article on non-defended localities amounted to an elaboration of the summary rule in Article 25 of the Hague Regulations on Land Warfare of 1899/1907 prohibiting the attack or bombardment, by whatever means, of undefended towns etc.; at the same time, it developed Article 15 of the Civilians Convention of 1949 (where the localities in question are, however, indicated as “neutralized zones”). The proposed Article on neutralized localities was in fact an improved version of the provisions on “hospital and safety zones and localities” in Articles 23 of the 1949 Sick and Wounded Convention and 14 of the 1949 Civilians Convention. The subject roused but limited interest among the experts and the number of written amendments was exceedingly small. Actually, only a group of five EastEuropean delegations (from Bulgaria, Czechoslovakia, the German Democratic Republic, Hungary and Poland) tabled comprehensive amendments to both Articles which in fact departed radically from the system proposed by the ICRC. The co-sponsors started from the premise that attacks on non-defended localities, whether situated in or outside a zone of military operations, are already prohibited under existing international law. Therefore, agreement between the Parties to the conflict was not necessary, and it was only to ensure the better observance of this prohibition that the interested Party could make a unilateral declaration about the character of the locality in question. As was observed in the debate, “[i]n the absence of a reply from the attacking Power, the effect of such a declaration would be that the attacking Party could not claim ignorance of the non-defended state of the city in question.” According to the same expert, a further effect would be to establish a “presumption of no defence” in favour of the locality. Here, however, an obvious difficulty is that the attacking Party can hardly be required to believe each and every unilateral declaration its opponent 91 92 93

ICRC draft Articles 53, 54. CE/COM III/PC 113, 114. Para. 3.212.

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chooses to make. It would seem, therefore, that in the absence of outside supervision the only effect of such a unilateral declaration would be to prevent the attacking Party from claiming ignorance as to the fact that the declaration had been made. It is precisely for this reason that the system proposed by the ICRC and which included agreement in one form or another seems vastly preferable. In the conception of the five delegations amendments, the idea of neutralization would apply exclusively to areas rather than localities. Such areas could, again, be situated in or outside a zone of military operations. Agreement would, however, be a prerequisite for neutralization, and this would have to make provision for supervision. A striking feature of these alternative proposals is that they stuck much more closely to the pre-existing law than did the ICRC draft Articles. Nor was this the only occasion where experts of East-European countries displayed a marked preference for previously accepted treaty law. Besides localities (or areas), also categories of persons can be the object of special protection. In this respect, the ICRC had confined its proposals to two categories: children, and civil defence organizations; this in conformity with its firm conviction that proliferation of special protection would be tantamount to no special protection at all and might even weaken the general protection of the civilian population. Besides, it transmitted to the Commission the latest results of the deliberations in the United Nations Commission on Human Rights concerning protection of journalists engaged in dangerous missions. Commission III followed the lead of the ICRC in exerting utmost caution with respect to this modality of special protection, this in sharp contrast with its 1971 predecessor which had excelled in naming ever more categories of persons who might qualify as possible candidates. This time, only the members of police forces were mentioned anew by the Swiss experts, who pointed to the necessity of guaranteeing their unhampered functioning in the event of enemy occupation. The idea of special protection for children, supported in principle by the experts, was elaborated in the ICRC draft into a set of rules about the safeguarding of children (i.e., the duty to take care that young children do not take part in hostilities); the pronunciation or execution of the death penalty on children of under eighteen years at the time of the offence, on mothers of infants or 94 95 96

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ICRC draft Articles 57-62 and 67-72. Supra, text at note 10. CE/COM III/PC 19; para. 3.233. A completely opposite note was struck by the Romanian amendment CE/COM III/PC 57, which wanted to replace the whole idea of special protection with a reminder that “[m]embers of the civilian population entitled to general protection – women, children, the aged, wounded, sick and infirm – shall receive from the belligerents the necessary assistance and care.” Paras. 3.230-3.232.

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women responsible for their care, and on pregnant women; and the repatriation of children. For the duty to safeguard children the ICRC had proposed three alternative texts, the most important difference being that the first two propositions envisaged only direct participation in hostilities whereas the third proposition equally excluded the employment of children as auxiliaries. In the Commission, the strongest support was for the first of these propositions. An additional paragraph was proposed by the experts of Egypt and the Lebanon who, starting from the realistic observation that children do often take a direct part in hostilities, suggested to lay down that such children when captured would not be held responsible for their participation; instead of being punished, they would be the object of protective measures such as being placed in a re-education institute. This does not seem a particularly felicitous suggestion; whilst already the basic idea of the non-responsibility of young participants in hostilities is likely to be greeted with less than unqualified enthusiasm, the proposed measures of childprotection and re-education (by the enemy!) are certain to evoke the strongest opposition from many quarters. The question of the protection of civil defence organizations was not discussed by the Commission itself but by a Sub-Commission of specialists set up for that purpose. This Sub-Commission eventually expressed itself in favour of a set of draft Articles which differed in one significant respect from the original ICRC proposals: where these had been based on the idea of special protection for the organization as such, the Sub-Commission’s draft Articles put the function of civil defence first and foremost (defined as the “humanitarian tasks to save human lives, relieve suffering, ensure the survival of and provide living conditions for civilians exposed to dangers resulting from hostilities or disasters”). Protection would extend to all organizations charged with these tasks and recognized by the Government, as well as to individual persons who, although not belonging to such organizations, perform such tasks under arrangements organized by their Government. The organizations would not be permitted to have any combat mission, but they could be organized along military lines and be responsible to military authorities. The concept of special protection for civil defence personnel was elaborated into detailed rules both for non-occupied and occupied territory. An element 98 99 100 101 102 103 104

Para. 3.241. CE/COM III/PC 99: para. 3.246. Report of the Sub-Commission: paras. 3.281 et seq. Para. 3.304: Sub-Commission draft Art. 67(1); see also para. 3.295. Para. 3.315: Sub-Commission draft Art. 67(A). Para. 3.310: Sub-Commission draft Art. 67(2). Para. 3.319: Sub-Commission draft Art. 68; para. 3.324: Sub-Commission draft Art. 69.

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of particular importance for the effectiveness of any system of special protection for such a category of persons will of course be its recognizability. In this respect, the Sub-Commission reached agreement on rules governing the use of a distinctive sign but not on the sign itself; this matter was referred back to the ICRC for further study. Commission III discussed the third question under this heading, special protection for journalists on dangerous professional missions in areas of armed conflict, on the basis of the draft articles which the UN Commission on Human Rights had approved in March 1972 as the basis for further work. While some experts had their doubts about the advisability of granting special protection to this category of persons, a majority expressed themselves in favour of the idea, on the grounds that information about the events connected with armed conflicts was in the interest of world public opinion and that such information, and the presence of journalists on the scene, might contribute to a more effective implementation of humanitarian law; viewed thus, the risks incurred by the journalists indeed were in the interests of international society. Commission III lacked the time to enter into any thorough discussion of the detailed rules drafted by the Human Rights Commission and which, elaborating the basic idea, related to such diverse matters as the distinctive emblem and the identity card of the journalists in question, the setting up of an international professional committee, and – last but not least – the specific steps which Parties to a conflict would be obliged to take so as to give substance to the idea of special protection. The debate therefore remained confined to a series of more or less perfunctory remarks about the various rules, with most attention being given to the last-mentioned aspect of the specific obligations of Parties to a conflict. The draft article on this matter was curiously one-sided in that it laid a number of detailed obligations (including the duty to do “all that is necessary to protect [a journalist] from the danger of death or injury or from any other danger inherent in the conflict and in the conduct of all parties to the said conflict” and to “[i]nform him to the extent compatible with military requirements of the areas and circumstances in which he [might] be exposed to danger”) on the Party to the conflict which would have “identified [the] journalist as one who holds a card” and none at all on the other Party. Connected with this was the absence of a duty for the journalist to wear the distinguishing emblem; he would merely be entitled to do so. In other words, no attempt had been made to follow the system of the Geneva Conventions where obligations to respect and to protect are distributed over both Parties. This, as well as the highly detailed nature of the

105 Paras. 3.334, 3.335; para. 3.340: Sub-Commission draft Art. 71. 106 Paras. 3.76, 3.78. 107 Draft Articles 10, 8.

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proposed rules which probably would be difficult for the military authorities to apply, were the points which drew most critical comments. Another aspect worth mentioning is the obligations of the journalists themselves. In the draft articles these were limited to non-interference in domestic affairs and non-participation, whether direct or indirect, in hostilities. This drew the comment that emphasis should also be placed on their duties with respect to the objectivity of the information they transmitted, and (as a representative of the ICRC observed) on their duty to respect the human dignity of victims of conflicts. A final aspect of the work of Commission III concerned relief for the civilian population. The relevant Articles in Draft Protocol I aimed at developing Article 23 of the 1949 Civilians Convention. That Article already makes important inroads on the freedom of belligerents to blockade the enemy territory by providing that they “shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians” even of the adverse Party, as well as the “free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.” The aim now was to extend the range of goods and beneficiaries to cover all relief and the entire civilian population. The necessity of forbidding starvation of the civilian population as a means of warfare was generally recognized. On the other hand, a number of problems are involved in giving effect to this principle. Thus, relief in order to be effective should be competently organized, and both the free passage of relief consignments destined for enemy territory and the admission of such consignments into the territory present delicate problems of supervision and sovereign rights. The Norwegian experts therefore proposed to put all the medical, logistic, economic and legal problems involved before a group of experts to be convened for that purpose by the ICRC in co-operation with the League of Red Cross Societies and the Secretary-General of the United Nations. This suggestion was met favourably in the Commission, and it seems probable that it will be followed by the organizations in question. 2.3

Commission IV

The main task before Commission IV was to discuss the parts of Draft Protocol I dealing with implementation, both of the existing Geneva Conventions and of the Draft Protocol, under the sub-headings of supervision, penal sanctions, repris108 109 110 111

Para. 3.87. Para. 3.90. ICRC draft Articles 63-66. Para. 3.264; CE/COM III/PC 112. See also paras. 5.39-5.41 (final plenary session).

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als and dissemination. The Commission also discussed other general and final provisions and the preamble of the Draft Protocol, as well as a draft Declaration on the Application of International Humanitarian Law in Armed Struggles for Self-determination and a draft Resolution concerning Disarmament and Peace. These latter parts of the discussions will for the most part be passed over in silence. The Commission set up a Drafting Committee of eight members and two similarly limited working groups for specific articles. The general task of the Drafting Committee was to go over the wording and order of the draft articles which the Commission after discussion would refer to it. In a number of instances it moreover received an express mandate to enter into the substance of specific draft articles; for those articles it acted as a working group as well. As a result of this procedure, a number of important improvements were brought to the texts proposed by the ICRC, and in the numerous instances where a diversity of opinion became apparent among the experts the different views were rendered in carefully formulated alternative texts. Supervision, while one of the most important subjects before the Commission, was also among the most delicate ones as it involved such actors besides the belligerent Parties as third States, the United Nations and the ICRC. The 1949 Conventions of Geneva already contain a system of supervision by Protecting Powers or, in their absence, “an organization which offers all guarantees of impartiality and efficacy”; and, if this system fails to be applied, the belligerent Party holding protected persons in its power is obliged to accept “the offer of the services of a humanitarian organization, such as the International Committee of the Red Cross, to assume the humanitarian functions performed by Protecting Powers” under the Conventions. In the course of the deliberations at the 1971 Conference of Experts the ICRC had declared itself ready to assume the complete responsibilities of Protecting Powers under the Convention, as these were all humanitarian in character; in other words, it was ready to act as a substitute for Protecting Powers. At the same time, the suggestion to entrust some or other United Nations organ with a supervisory function also found substantial support. The perspective for a significant improvement of the system of supervision seemed therefore bright. It would be an overstatement to say that these high expectations were a hundred per cent realized during the 1972 session of the Conference, but neither can one speak of a complete failure. The principle of supervision and the system embodied in the Geneva Conventions were upheld by an overwhelming majority of the experts; indeed, it was a remarkable feature that the abolition of 112 113 114 115

Para. 4.3; as in 1971, the present author acted as Rapporteur of this Commission. Paras. 4.5-4.7. Articles 8-10 of Conventions I-III (9-11 of Convention IV). 0p. cit. note l, at p. 87.

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the Protecting Powers system was not suggested from any side. On the other hand, especially experts from East-European countries laid much emphasis on the sovereignty of States and their prime responsibility for the correct and bona fide application of the Conventions. On the practical level, virtually all experts flatly rejected any suggestion to make the designation of a Protecting Power a one-sided affair; agreement of the Detaining Power would remain an absolute requirement. There was, however, quite some willingness to accept either the ICRC or a United Nations organ as “automatic fall-back institution” for the event that no Protecting Powers would be designated. This last idea gave rise to some further difficulties: was the ICRC able and willing to accept such a role? And was there a suitable United Nations organ to perform supervisory functions? The first of these questions confronted the ICRC with a difficult problem. On the one hand, it is most eager to see the Conventions faithfully applied and it is certainly willing to contribute to this result to the best of its abilities. The declaration which it made in 1971 must be understood in this light. On the other hand, no one is more aware than the ICRC of the many practical and political obstacles which may be in the way of an effective outside supervision. Hence, while some members of the ICRC were inclined to accept the role of an automatic “fall-back” institution, the majority considered the risk too great that such an automatism on paper would in many cases remain a dead letter and that the ICRC would then be blamed for “failing to realize its legal rights.” In order to avoid this embarrassing situation and the ensuing damage to its reputation, the ICRC finally decided “not [to] accept a formula to the effect that it would be obliged in certain circumstances automatically to act as substitute”; on the other hand, “it did not object to a provision urging the Parties to the conflict to accept in such circumstances an offer on its part to act as such.” And it made clear that “it would make such an offer only under the conditions that its services were acceptable to both Parties and that it would have at its disposal the financial means and manpower required for the task.” Indeed, this point was so crucially important for the ICRC that its President took care to expressly repeat it in his address to the final plenary session of the Conference. All this could not, however, prevent Commission IV including among its proposals for a more effective functioning of the supervision system a paragraph to the effect that in the event of protected persons continuing not to benefit by the activities of a Protecting Power, the ICRC “shall be accepted as a substitute 116 117 118 119 120 121

Para. 4.73. Paras. 4.58-4.59, 4.64. Para. 4.62. Paras. 4.62-4.65. Para. 4.68. Para. 5.46.

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for the Protecting Power.” In the indicative voting at the end of the Commission’s deliberations this formula won even more support than two alternative texts which made the acceptance as a substitute dependent on the ad hoc agreement of both Parties to the conflict. Another aspect of the question was whether the ICRC could be expected to carry out all the supervisory functions of a Protecting Power. In this respect, a number of experts from Arab countries argued that among these functions were the investigation and publication of violations of the Conventions, tasks which the ICRC had consistently refused to perform. The answer of the ICRC was that it was indeed not inclined to assume such functions, as its aim was protection of victims rather than the denunciation of violations; nor, for that matter, did the latter activity fall under the traditional functions of Protecting Powers. This reply, far from convincing the experts in question, strengthened them in their conviction that another body besides the ICRC, preferably a United Nations organ, would be necessary to complete the supervisory system. The idea to entrust a United Nations organ with supervisory functions attracted several other experts, who for the rest did not share their Arab colleagues’ view on the nature of those functions. An obvious difficulty was to find a suitable organ; none of the existing organs seemed particularly suited for the role, and the international climate seemed hardly favourable to the creation of a new one. Eventually, the Egyptian and Norwegian experts introduced a proposal which left the question open, stating merely that the Parties to a conflict could appoint as substitute for Protecting Powers “any organ established or designated by the United Nations for that purpose.” The proposal, and in fact the whole idea of supervision by a United Nations organ, drew, however, only the support of a minority among the members of Commission IV. A final aspect of the question of supervision concerned its application to certain parts of Draft Protocol I. So far, supervision by Protecting Powers had been confined to the part of the law of armed conflict relating to the protection of war victims in the hands of the adverse Party, and it would present no great difficulties to fit into this traditional function those parts of Draft Protocol I which supplemented that part of the law. The situation was different, however, with respect to those parts of Draft Protocol I which “reaffirmed and developed” the so-called law of The Hague relating to such matters as the limitations on the use of means and methods of warfare and the general protection of the civilian population; here, outside supervision was neither a traditional function nor easy to visualize. Yet, both the original ICRC draft and the text drafted by the competent working group referred indiscriminately to the purpose “of applying the Conventions and the present Protocol.” The working group took care to note that the question 122 123 124

Para. 4.80: Working Group draft Art. 6(5); para. 4.81. Para. 4.72. CE/COM IV/48.

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“remained to be studied in the light of the texts that will be drafted” for the relevant parts of Draft Protocol I. For the rest, the question received scant attention on the side of the Commission. Under the heading of “penal sanctions” the Commission examined both the improvement of the system embodied in the Geneva Conventions and the repression of violations of the Draft Protocol. The discussion evoked the usual demands for an international penal code, an international criminal tribunal, and criminal liability of States besides individuals. A rather more modest suggestion was to draft a model law for the repression of infractions of the Conventions and the Draft Protocol. While earlier attempts in this direction have pointed up the practical difficulties attending this idea, it seems worth pursuing nonetheless, as a goal not completely out of reach. As matters of more immediate concern the Commission discussed the questions of infractions committed by omission, responsibility of authorities and superior orders. The Conventions of Geneva of 1949 are silent on these questions, although it is sometimes argued that the reference in the relevant Articles to “persons committing, or ordering to be committed, any of the grave breaches” defined in the Conventions covers the case of commission by omission. Be this as it may, some greater clarity would certainly be desirable on this point. The need of an internationally accepted rule on the criminal liability of those in authority for failure to take the steps within their power to prevent or repress breaches of the law of war had been urged in the Netherlands in particular by Professor Röling, former member of the International Military Tribunal for the Far East in Tokyo where this concept had been brought into practice. At his instigation, the Dutch delegation introduced a proposal concerning this matter in the Commission. The issue roused but little interest among the other delegates and so failed to be included among the additional draft articles on penal sanctions elaborated by the Drafting Committee. Yet it is to be hoped that it will in future deliberations receive the attention it deserves. Not so much a lack of interest as strong hesitations about the desirability and feasibility of finding an acceptable solution marked the discussions about superior orders. Even so, a number of proposals were put before the Commission. 125 126 127 128

Para. 4.79. Para. 4.119. Para. 4.120. Articles 49/I, 50/II, 129/III, 146/IV; see, e.g., Commentary to Convention I, pp. 3645. 129 CE/COM IV/45; para. 4.122. 130 It will then also have to receive an adequate definition. For a survey of the various formulas used in the post World War II trials, see Law Reports of Trials of War Criminals. Selected and prepared by the United Nations War Crimes Commission, Vol. XV: Digest of Laws and Cases, 65-78 (1949). See also The Law of Land Warfare, U.S. Dept. of the Army FM 27-10, section 501.

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These were of two types: one, laying down that the defence of superior orders is not accepted in all cases, and the other providing that no one shall be punished for refusing to obey an order which, if carried out, would result in a breach of the Conventions or of the Draft Protocol. Each of the various proposed formulas received the support of a number of experts, thus underscoring the difficulty of finding sufficiently wide support for any one formula. Obviously, universal acceptance will be out of the question; indeed, several experts took pains to emphasize the need of military discipline and the difficulty “in time of armed conflict to permit soldiers to decide whether to obey or not.” While the above questions concerned the penal sanctions provisions of the existing Geneva Conventions as well as of the Draft Protocol, an issue solely connected with the Draft Protocol was whether the most outstanding feature of the system applied in the Geneva Conventions, viz., the distinction between grave breaches and other (minor) violations with all the attendant differences in obligations of the Contracting States, ought to find application in the Draft Protocol as well. The grave breaches enumerated in each of the Conventions are all defined in relation to the protected persons and property of the Conventions. To some experts it seemed an open question whether this system would be particularly suited for the Draft Protocol which in the end would probably contain rules about the behaviour of belligerents and means and methods of warfare. In any event, a thorough examination of the advantages and disadvantages of the “grave breaches” concept seemed called for. As also among the other experts the feeling prevailed that any attempt at drafting a penal sanctions provision for the Draft Protocol would be premature as long as the contents of its substantive rules were still highly uncertain, the further discussion of this subject was postponed to a later occasion. Under the heading of “sanctions” mention should also be made of the discussion on reprisals. As related before, the ICRC had included certain specific prohibitions of reprisals in the part of Draft Protocol I dealing with the general protection of the civilian population. However, these did neither cover all possible modalities of reprisals in that part nor did they extend to the part on the conduct of combat. In the part containing general provisions, the subject of reprisals was broached once again; here, the ICRC proposed a general prohibition of reprisals against persons and goods protected under the Conventions 131

132 133 134 135

CE/COM IV/41 (Norway), CE/COM IV/46 (Belgium), CE/COM IV/54 (Canada), CE/COM IV/56 ( Jordan); para. 4.126: Drafting Committee draft Art. 75 B, para. 2, alternatives 1 and 2. CE/COM IV/41 (Norway), CE/COM IV/54 (Canada), CE/COM IV/58 (Poland); para. 4.126: Drafting Committee draft Art. 75 B, para. 2, alternatives 3 and 4. Para. 4.123; CE/COM IV/59 (Indonesia, Iraq, Pakistan, Tanzania, Tunisia, Turkey). Para. 4.121. Supra, text at note 73.

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and the Draft Protocol. In a second paragraph, it moreover proposed a rule to the effect that a belligerent who would have recourse to reprisals in a domain where these are not yet prohibited, would be obliged to observe a number of conditions: official announcement, decision by a competent authority, imperative necessity (i.e. the requirement of subsidiarity), proportionality, respect of the laws of humanity and the requirements of the public conscience, and interruption as soon as the infraction provoking them would cease. The first paragraph of this draft Article was considered superfluous by some experts, who argued that recourse to reprisals implying the use of force was already prohibited under general international law, notably by the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations. It should be pointed out that this argument was fallacious as the prohibitions contained in those instruments concern recourse to force as a threat to, or breach of, the peace and not the modalities of the use of force in the context of an armed conflict (in other words, they concern the jus ad bellum, not the jus in bello). Nor did the argument convince the majority of the experts who considered the proposed paragraph a useful reaffirmation of the specific prohibitions contained in the Geneva Conventions and the Draft Protocol. Worse was the fate of the second paragraph. Even those experts who had shown an awareness that the Draft Protocol did not preclude recourse to reprisals in the domain of the conduct of hostilities and the choice of means and methods of warfare, were virtually unanimous in their rejection of the idea that rules limiting such recourse would be included in an international legal instrument. Apart from possible doubts about the probable effectiveness of such rules, the prevailing motive for this attitude may have been the fear that limitation, as opposed to prohibition, of reprisals could be construed as a legitimization of a notion which now at most could be considered as tolerated. It should be emphasized that such a fear reflects a misapprehension of the law as it stands; in the law of armed conflict, as in international law in general, reprisals unless prohibited still are justifiable rather than merely tolerated acts. Nor did the negative attitude of the experts bring the issue any further: as the representative of the ICRC rightly remarked, suppression of the proposed paragraph would “certainly not solve the 136 137 138 139 140

141

ICRC draft Art. 74. See also op. cit. note 82, pp. 339-344. Paras. 4.135-4.136. Para. 4.136. See also op. cit. note 82, pp. 289-294. Para. 4.137. Paras. 4.135, 4.138. The Yugoslav expert made the useful suggestion to insert the gist of the paragraph after Art. 30 opening the part dealing with combatants; CE/COM IV/53. Op. cit. note 82, pp. 22-26, 42-44, 375-378.

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problem of reprisals taken in the course of combat.” This problem, therefore, remains in its entirety. The necessity of dissemination, the fourth aspect mentioned above under the heading of implementation, found the largest possible measure of agreement among the experts; as one expert pointed out, “dissemination of the law of Geneva among the civilian population, the police and the armed forces” was of “overriding importance” and “might even deprive the defence of superior orders of much of its importance.” This general feeling found expression, first of all, in acceptance of the general formula proposed by the ICRC that Contracting States in time of peace as in time of armed conflict would be obliged to give the text of the Draft Protocol the widest possible dissemination “and, in particular, to include the study thereof in their programs of military and civil instruction.” The last-quoted phrase constitutes an even stricter obligation than the comparable one in the existing Geneva Conventions where inclusion in the programs of civil instruction is required “if possible”. In answer to a pointed question of the expert of the United States, the legal expert of the ICRC explained that in drafting the new provision this “federal clause” had been deliberately omitted. Predictably, this innovation will give rise to quite some further debate on subsequent occasions, for it is by no means federal States alone which claim a lack of power to impose a modification of the programs of civil instruction: in the Netherlands too, the ministry of education shows a slightly exaggerated respect for the autonomy in these matters of the educational institutions in question. Needless to say, I am fully on the side of the ICRC in this matter; at a time when it is universally acknowledged that dissemination of the humanitarian law of armed conflict constitutes a prime condition for its effective implementation and when the UN General Assembly has invited the Member States to intensify their efforts in this domain, it seems slightly ridiculous that the obligation to ensure civil instruction would be permitted to yield to the sacrosanct autonomy of federative states or educational institutions. Besides the general obligation of dissemination, Commission IV also discussed a number of specific aspects. Thus, the representative of the UN SecretaryGeneral reminded the experts of the UN program of consultative services in the field of human rights, which allowed the exchange of concrete experiences, notably by the organization of international seminars and the grant of fellowships. 142 143 144 145 146 147

Para. 4.140. Para. 4.91. ICRC draft Art. 76; para. 4.151. Para. 4.156. As the representative of the Secretary-General recalled, referring to GA Res. 2853 (XXVI); para. 4.150. The Secretary-General already made a suggestion to this effect in his first Report on Respect for Human Rights in Armed Conflicts, A/7720.

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Mention was also made of the recently established plan of action for national Red Cross societies in the dissemination and development of humanitarian law. An idea which drew widespread support was to oblige Contracting States to report at regular intervals about the measures taken in the field of dissemination. It was also suggested that the “qualified personnel” which Contracting States under another proposed Article of the Draft Protocol would “endeavour to train … to facilitate the application of the Conventions and of the present Protocol and in particular the activities of the Protecting Powers” in the event of an armed conflict, could usefully be assigned a role in the field of peacetime dissemination and instruction as well. Commission IV in the course of its deliberations occupied itself with a fair number of other topics, both within and outside the context of implementation. In several instances, these discussions bore a preliminary character as the final form to be given the articles in question, or even their very desirability, depended on the outcome of the work of other Commissions and, for that matter, of the future diplomatic conference. We saw this already in the context of penal sanctions, where the fundamental aspects of the system to be applied in respect of infractions of the Draft Protocol had to be left undecided. And the same was true of such subjects as the proposed article on reservations and the preamble. It would serve no useful purpose even to provide a list of these various subjects. For the sake of curiosity I make an exception for the Draft Resolution concerning Disarmament and Peace. The ICRC, which in the part of the Draft Protocol bearing on the conduct of combat had refrained from proposing any specific weapons prohibitions, had considered it necessary to submit in compensation the text of a Draft Resolution which the diplomatic conference could eventually adopt and which would express in brief words the feeling of the conference that, despite the absence of specific prohibitions in the Geneva Conventions and the Protocol, certain named categories of weapons were contrary to the exigencies of humanity and ought not to be used by belligerents; the draft text went on to express the hope that the production, stockpiling and use of the weapons in question would be prohibited and that these measures would be conducive to general and complete disarmament, and in a final clause it exhorted the Parties to the Geneva Conventions to do everything within their power to preserve peace. The Draft Resolution, in brief, was an attempt to refute the reproach 148 Para. 4.153. The text is found in the Report of the Vienna Conference, supra note 14, at p. 75. 149 Para. 4.152; CE/COM IV/24 (Federal Republic of Germany), CE/COM IV/60 (United Kingdom); para. 4.158: Drafting Committee draft Art. 76(3). 150 Para. 4.91; CE/COM IV/14 (United States). 151 Supra, text at note 133. 152 Supra, text at notes 34, 35. 153 The proposed text is found between paras. 4.224 and 4.225.

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that no attention had been given to the weapons problem, while at the same time referring the problem to the disarmament discussions. Nor was it a small matter which was thus referred to the other forum, for the Draft Resolution listed the following categories of inhumane means of warfare: weapons of mass destruction, blind, poisonous and particularly cruel weapons, and weapons with indiscriminate effects. The Commission, lacking sufficient information about the results of the debate on weapons in Commission III, broached the subject only after much hesitation and, indeed, after formal protests. Yet, once started, some delegations displayed a remarkable zeal in contributing amendments to the text proposed by the ICRC. In particular the Romanian experts produced a document which deserves to be saved from oblivion; in some 2000 words, divided over four parts, their Draft Declaration gave a complete exposé of the Romanian views about virtually every important aspect of present-day international relations and international law, ranging from the prohibition of aggression and intervention in the domestic affairs of other States to universal respect of human rights and the right to self-determination of peoples. When in the course of the debate another expert introduced an oral amendment which wanted to add to this already exhaustive enumeration a reference to the right of peoples to dispose of their natural resources, it could even be said that a link had been established between this Conference on the humanitarian law of armed conflict and the conferences of the UN Oceanbed Committee on the development of the law of the sea. One paragraph in the Romanian text drew severe criticism of several other experts. It was the statement that “[a]s wars of aggression are considered as international crimes, humanitarian law is based on the distinction between the aggressor and the victim of aggression and provides protection of the victim in the exercise of the inherent, and consequently sacred, right to self-defence.” While the first part of this sentence seems a correct statement of the law, the conclusion about the basis of humanitarian law is utterly false and might even lead to the absurdity that “all soldiers of a State considered to be the aggressor by its adversary would therefore be deprived of any protection which humanitarian law might give.” This, the Romanian expert explained, was not the purport of the paragraph; its purpose “was merely to bring out clearly to which side the humanitarian support of international society should be directed.” This sounded reassuring, but it still betrays a fundamental misconception of the nature of humanitarian law. From the days of Henry Dunant this has been based, as it is today, on the idea that protection and support should be afforded those in need, regardless of the side on which they are. Obviously, if most victims would be on 154 155 156 157

CE/COMIV/71. Part I, section 3. Para. 4.231. Ibid.

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the side of the attacked Party, most support would have to be directed to that side, but this not as a matter of legal preference but of practical concern. In any event, this episode of the debate demonstrates how far the Draft Resolution on Disarmament and Peace and the Romanian amendment could lead the experts away from their proper terrain. 2.4

Commission II

The task of Commission II was to examine Draft Protocol II: the Draft Additional Protocol to Article 3 Common to the Four Geneva Conventions of 12 August 1949. The Draft Protocol covered a wide variety of items relating to non-international armed conflicts, ranging from the definition of those conflicts for the purposes of the Protocol, through the protection of the population and the position of combatants, to the possibility of outside supervision and similar provisions on compliance and enforcement. Obviously, many of these items were found in Draft Protocol I as well; the difference between the two texts lay not so much in their subject-matter as in the manner in which this had been treated: in many places, Draft Protocol I provided more severe or more detailed obligations for the Parties to an international armed conflict than did Draft Protocol II for the Parties to a non-international armed conflict. On the other hand, the latter Draft Protocol had to make provision for certain matters which for international armed conflicts had already found regulation in the Geneva Conventions of 1949 and on which Draft Protocol I therefore could be silent. The basic question for the experts in Commission II (and, ultimately, for their Governments) was of course how far they wanted to go in assimilating noninternational and international armed conflicts. This basic question dominated every aspect of the debate, from the question of definition of non-international armed conflicts to the readiness to accept outside supervision. And it is a disappointing but unmistakable truth that the experts were far from achieving anything like consensus in this matter. This lack of consensus is apparent throughout the Report, where the articles as they emerged from the Drafting Committee show sometimes as many as six alternative texts, each of which found the support of a certain number of experts. In these circumstances, it seems unnecessary to enter here into all the specific questions discussed by the Commission and recorded in such detail in the Report (which, in fact, is by far the longest of the Commission reports). For present purposes it may suffice to treat one question only, viz., the scope of the Draft Protocol, or, in other terms, the definition of non-international armed conflicts. Two basic alternatives present themselves here: either an extensive definition, perhaps as wide as in the present Article 3 of the Geneva Conventions (“armed conflict not of an international character occurring in the territory of one of the High Contracting Parties”) or even wider, including political disturbances and

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similar danger situations below the level of armed conflict; or a restrictive definition, limiting the field of application of the Draft Protocol to certain modalities of internal armed conflict only. There exists an obvious relationship between the choice one makes here and the readiness to accept new rules in addition to the few principles embodied in Article 3 of the Geneva Conventions; the more restrictive the internal armed conflict is defined (and the closer it therefore resembles the international armed conflict), the greater the readiness to make whole parts of the law of armed conflict applicable. It is indeed often suggested that this law is applicable in its entirety in the event of a “civil war” in the classical sense, with either Party being recognized as a belligerent by the other Party. And the attempts are well-known to obtain the classification of certain types of internal situations (such as “wars of national liberation”) as international armed conflicts, with the sole purpose of thus achieving the application of the whole of the law of armed conflict. These attempts are evidently in complete contrast with the thesis that the territorial State is alone competent to decide whether a situation amounts to an armed conflict at all. The ICRC in its proposed text had aimed at securing for Draft Protocol II a field of application as wide as that of common Article 3 (“… shall apply to all conflicts not of an international character referred to in common Article 3”), while at the same time achieving somewhat greater clarity by specifying certain situations which at all events would come under that definition: “and, in particular, in all situations where, in the territory of one of the High Contracting Parties, hostilities of a collective nature are in action between organized armed forces under the command of a responsible authority.” The ICRC had not however added any proposal empowering an outside authority to establish the existence of such a specific situation of collective hostilities. The determination that such a situation exists would therefore in principle remain a power of the State in question, although nothing would prevent an appraisal of the situation by the outside world and, with that, the possibility for entities or institutions other than the territorial State to urge the application of the Protocol. This led some experts to argue that the additional clause in the proposed definition might actually limit the field of application of the Draft Protocol and 158 159

As was pointed out in the debate; para. 2.64. On this question, see Roscoe R. Oglesby, Internal War and the Search for Normative Order (1971). 160 For the discussions at the 1971 Conference of Government Experts, see op. cit. note 1, pp. 80-81. This time, the issue was raised already in the general debate opening the discussions of Commission II; paras. 2.35-2.39. See also Georges Abi-Saab, “Wars of National Liberation and the Laws of War”, in Annales d’études internationales (1972) p. 93. 161 ICRC draft Art. 1. 162 Such a possibility had already been categorically rejected in 1971; see op. cit. note 1, at p. 78.

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open the possibility for States to side-step it. Some proposed amendments aimed at removing this effect, either by clearly separating the two parts of the definition or by completely deleting the second part. Among the remaining amendments, only one maintained the basic structure of the proposed definition, while introducing into the second part even more stringent language to the effect that the responsible command must have “effective authority guaranteeing its willingness and ability to ensure observation of the rules of Humanitarian Law in force.” All the other amendments differed radically from the ICRC proposal in that they expressly limited the application of the Draft Protocol to certain well-defined situations. This was achieved, either, by attaching to the reference to common Article 3 a definition of the notion of armed conflict “for the purposes of the present Protocol”, or by omitting all reference to that Article. The effect of this manoeuvre would be completely to modify the character of the Draft Protocol; instead of being “additional to common Article 3” it would be turned into a “Fifth Convention of Geneva” which would be applicable to certain well-defined categories of internal armed conflict. At the same time, common Article 3 and the fundamental principles embodied in it would be left to their fate. Yet, all but two of these last amendments could be regarded as constructive ones, as they defined the internal armed conflict in objective terms, susceptible in principle of outside appreciation. The definitions differed widely, however, ranging from texts not much different from the one proposed by the ICRC to the extremely restrictive French version limiting the application of the Protocol to internal armed conflicts “of unquestionable intensity” and which would occur “over a prolonged period”; this last amendment excluded moreover formally “riots, banditry, isolated acts of violence, offences against penal law or other acts of a similar nature.” An English proposal took an original (though also slightly restrictive) line by introducing as the sole qualification of the armed conflict that

163 164 165 166 167

Para. 2.45. CE/COM II/2 (Austria), CE/COM II/19 (Belgium). CE/COM II/13 (Philippines), CE/COM II/17 (Egypt, Norway). CE/COM II/18 (Spain). CE/COM II/4 (Romania), CE/COM II/14 (United Kingdom), CE/COM II/16 (Argentina). 168 CE/COM II/1 (United States), CE/COM II/3 (France), CE/COM II/5 (Canada), CE/COM II/6 (Indonesia). 169 Para. 2.61. The experts of Pakistan introduced this as a formal proposal; CE/COM II/40. 170 CE/COM II/l (United States), CE/COM II/5 (Canada). 171 CE/COM II/3.

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“the Parties to the conflict have the material means of observing and ensuring the observance of the obligations of common Article 3 and of this Protocol.” The two amendments clearly destructive in character wanted to do away completely with all appearances of objectivity and leave the decision whether a situation amounts to an internal armed conflict expressly to the interested State. In the terms of the first of these, introduced by the Romanian experts, the Protocol would apply “to all the armed conflicts not of an international character referred to in common Article 3, where the State in whose territory the events are occurring recognized the existence of the internal armed conflict, its character and its constituent elements.” A more unambiguous statement of the principles of “preponderance of national sovereignty” and “non-interference in the internal affairs of other States” would be hard to find. These principles had in fact been invoked by numerous speakers in the general debate on Draft Protocol II, together with such derived concepts as the impossibility for States to transfer to others the right to maintain order on their territory, and the right of a State “to promulgate its own internal humanitarian law and lay down the conditions for the application of that law, which would combine the moral principles adopted by that country with the requirements of national security.” Indeed, “the State is man’s best friend”; or, as one expert had it, “national security constituted an inalienable attribute of a State, since it guaranteed the security of the individual and respect for human rights.” Another expert went so far as to deny utterly the possibility that international humanitarian law could apply to internal armed conflicts; such law could only apply where a conflict would have an international character, such as (he added) in a war of national liberation – that is, in an armed conflict waged in a different part of the world. This much will be clear from the above exposé that the differences of opinion among the experts about the desirable field of application of Draft Protocol II were enormous; in fact, the degree of their readiness to accept additional rules of international humanitarian law for internal armed conflicts ran all the scale from zero to a hundred. In these circumstances, the Drafting Committee could obviously do no more than list the alternatives in a logical order. This exercise resulted in an impressive catalogue of six main alternatives, many of which were in their turn sub-divided into further options. This list was laid before the Commission, where the members who wished to do so were given an opportunity to express 172 173

CE/COM II/14. CE/COM II/4; the other amendment in this category was CE/COM II/16 introduced by the experts of Argentina. 174 Para. 2.28. 175 Paras. 2.26-2.32; the quoted words are in para. 2.29. 176 Para. 2.31. 177 Para. 2.29. 178 Para. 2.71: Drafting Committee draft Art. 1.

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their preferences. Among the 70-odd participants to the Conference, a mere seventeen experts took this opportunity, and their remarks were not particularly helpful in all cases; some confined themselves to proposing further modifications or combinations of the texts before them, and one even wound up by expressing his general reserve to all the alternatives presented. With this hardly edifying spectacle the discussions in Commission II on the field of application of Draft Protocol II came to an end. The Commission then went on to discuss the further articles of the Draft Protocol. As said before, equally fundamental differences of opinion as those set out above became apparent at every turn of the road, in particular with respect to such subjects as the treatment of participants to hostilities (prisoner-of-war treatment or status, or mere humane treatment), infliction and execution of the death penalty and other modes of punishment of rebels, and the definition and protection of the civilian population. On all these questions, the debate was inconclusive, but in any event it produced a wealth of ideas and suggestions as well as a fair insight into the many obstacles which any attempt at solving the problems involved will find on its path. 3

Conclusion

At the Conference, it was generally agreed that no further conferences of Government experts would be necessary in preparation of the final stage. In accordance with this general feeling, the President of the ICRC announced in his speech towards the end of the closing session that the Committee intended to present in spring 1973 the text of new draft Protocols, via the Swiss Government, to the Governments of States Parties to the Geneva Conventions, for their examination in preparation of a diplomatic conference. And although he did not say so, it was understood that such a diplomatic conference might be convened somewhere in 1974. In the meantime, much preparation will still have to be done. There are, first, the meetings on weapons and relief which the ICRC has been invited to organize, and other expert meetings which it may wish to convene for specific questions. Then, also Governments may be expected to start, or intensify, their preparatory discussions both on the national and international levels. An opportunity for a preliminary round of discussions on the broadest possible level will be provided by the XXIInd International Conference of the Red Cross, which will be held in the late autumn of 1973 and where both Red Cross and Government delegations will be present. What are the chances of success for this whole venture? First, provided the international situation does not deteriorate too much, it seems a safe bet that 179 Paras. 2.80-2.106. 180 Para. 5.46.

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the diplomatic conference will be duly held and that it will adopt additional Protocols or Conventions “reaffirming and developing international humanitarian law applicable in armed conflicts.” But how many such new instruments will be adopted, and what will be their contents, remains very much an open question. Much, if not all, will depend on the proposals which the ICRC is going to submit. As to this, it seems reasonable to expect that one proposal will be a new version of Draft Protocol I, for international armed conflicts; indeed, this is probably the terrain where success is nearest at hand: with the right dose of nerve, a good deal of circumspection, and a bit of luck it should be possible to achieve a Protocol which even would contain a number of essential provisions about the conduct of warfare and the protection of the civilian population in the event of an international armed conflict. The perspective seems decidedly less bright for Draft Protocol II. To my mind, a complete and detailed set of rules as contained in the present draft Protocol stands little chance of being accepted by any significant number of Governments if it were to be applicable without reserve to the entire category of “armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties” to which common Article 3 refers. It seems even probable that a (hopefully limited) number of Governments will not be prepared to go even the smallest step beyond the minimal obligations arising from that Article, for any situation of internal armed conflict which they consider even barely possible for their own territory. In these circumstances, the most promising course seems to be for the ICRC to submit two separate proposals, one with the same field of application as common Article 3 and containing no more than the most absolutely essential rules in addition to the principles codified in that Article, and the other with a more elaborate and complete set of rules and a proportionally limited (though always objectively defined) field of application. Assuming for a moment that the diplomatic conference would adopt both these instruments, the legal situation would certainly be far from simple. There would be the rules for international armed conflicts - and the situations which, although not on the face of it amounting to interstate conflicts, yet are brought under that heading in order to make the rules in question applicable. Then, there would be the intermediate level of the “Fifth Geneva Convention” for select internal armed conflicts yet not qualifying for application of the rules for international ones. At the bottom of the scale one would find common Article 3 with its additional Protocol, as well as those norms embodied in human rights instruments which continue to apply in emergency situations. And to be complete, one should finally mention the situations of internal conflict below the level of an armed conflict, where the human rights conventions (or those parts not suspended under an emergency clause) provide the only applicable international instruments. For the rest, the Parties to conflicts would always have the capacity to make rules of a higher level applicable, whether by common agreement or by unilateral declarations.

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A legal situation of such complexity would not be especially desirable. Yet, if the creation of such a complex legal situation would be the only way to achieve a reasonable degree of protection of human beings from the unnecessary suffering and indeed the relapse into barbarity which a literal application to the modern forms of armed conflict of the old maxim inter arma silent leges would unquestionably entail, there can be no question of hesitation. After all, simplicity in legal matters may be an asset but it certainly is not the only virtue; and the dichotomous distinction between international and non-international armed conflicts probably is as much a mere expedient and as little a faithful reflection of reality as is the comparable distinction between war and peace.

Chapter 5 The First Session of the Diplomatic Conference on Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 20 February - 29 March 1974*

When the Swiss Minister for Foreign Affairs, Mr. Pierre Graber, on 20 February 1974 officially opened the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, much preparatory work had preceded this event. Some of this was recorded in earlier Volumes of this Yearbook. We will continue this record with a description of the events which took place since the last report ( June 1972) and then describe the proceedings of the Diplomatic Conference itself. 1

Preparations

In the United Nations, both the General Assembly and the Secretary-General continued to pay attention to the subject of “human rights in armed conflicts”. The Secretary-General devoted his fourth report on the subject to the second session of the Conference of Government Experts and to other relevant developments arising out of activities of non-governmental bodies such as the Institute of International Law, the International Institute of Humanitarian Law at San Remo and the Special NGO Committee on Human Rights. Another report, prepared at the request of the General Assembly (Res. 2852(XXVI) of 20 Dec. 1971), conveyed the views of a small group of experts on the question of “napalm and other incendiary weapons and all aspects of their possible use”. In a third report, the Secretary-General reported on the attention given by the Commission on Human Rights and, subsequently, the Economic and Social Council, to the protection of journalists engaged in dangerous missions in areas of armed conflict. New draft articles for an international convention on that subject were annexed to the report. * 1 2 3 4 5 6

Published earlier in 5 NYIL (1974) pp. 3-34. 2 NYIL (1971) p. 68; 3 NYIL (1972) p. 18. A/8781, 20 Sept. 1972. See my article in 3 NYIL (1972) p. 18. NGO stands for Non-governmental organizations. A/8803, 9 Oct. 1972; the group was composed of experts from Czechoslovakia, Mexico, Nigeria, Peru, Romania, Sweden and the USSR. A/8777, 5 Sept. 1972.

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An interesting novelty in the General Assembly’s handling of the matter was that the general subject of “human rights in armed conflicts” was no longer allocated to the Third (or Social) but to the Sixth (Legal) Committee. This suggested that the matter had acquired a measure of ripeness, permitting what some thought would be a more “serious” discussion than could be expected in the, at times perhaps somewhat rarefied, atmosphere of the Third Committee; the change did not however result in any significant difference in the quality of the debate. The question of napalm and other incendiary weapons, which evidently – and rightly – was not yet considered ripe for debate in the Sixth Committee, was treated by the First (or Political) Committee under the heading of general and complete disarmament. The protection of journalists remained with the Third Committee. The outcome of these various deliberations was the adoption by the General Assembly of two resolutions. One, concerned with the general aspects of the efforts towards codification in the field of humanitarian law (Res. 3032 (XXVII) of 18 Dec. 1972) “noted with concern” – and thus laid perhaps slightly too much emphasis on – the absence of agreement among government experts over such fundamental issues as the definition of military objectives and protected objects, of combatants and protected persons, and of non-international armed conflicts, as well as the prohibition or restriction of the use of certain weapons and the question of guerrilla warfare. In its operative part, the resolution urged all governments to seek to ensure that the Diplomatic Conference envisaged by the Swiss Federal Council would “mark substantial progress on fundamental legal issues connected with modern armed conflicts” and would thus “contribute significantly to the alleviation of the suffering brought about by such conflicts.” In another paragraph, the Secretary-General was requested “to prepare as soon as possible, a survey of existing rules of international law concerning the prohibition or restriction of use of specific weapons.” In the other resolution (2932A (XXVII) of 29 Nov. 1972) the General Assembly welcomed the report on napalm and other incendiary weapons, commended it to the attention of all governments and peoples, and requested the Secretary-General to “publish the report for wide circulation” and to invite the comments of governments. In between these rather tame and more or less selfevident clauses, there was one paragraph which used stronger language: operative paragraph 3 “deplored the use of napalm and other incendiary weapons in all armed conflicts.” Surely, this was as near to a condemnation – or prohibition – of 7

Besides the Secretary-General’s report, the GA also had at its disposal an Interim Report on Napalm and Incendiary Weapons: Legal and Humanitarian Aspects, prepared by SIPRI, the Stockholm International Peace Research Institute, on the basis of papers discussed at a symposium held at SIPRI in August 1972. This report went beyond the report of the Secretary-General in that it concentrated first and foremost on the legal and humanitarian issues raised by the contemporary use of napalm and other incendiary weapons.

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such use as the General Assembly, or, rather, the majority which carried the resolution could go without actually saying so. That no such condemnation or prohibition was pronounced is to be welcomed; obviously a statement to that effect at that time would have been a pointless exercise. Like resolution 3032, resolution 2932A also contained a reference to the general issue of conventional weapons. In the preamble, the need was urged for rules prohibiting the use of specific weapons that cause unnecessary suffering or have indiscriminate effects and, “if possible”, for the elimination of such weapons through disarmament measures. The debate in the Third Committee on the question of the protection of journalists engaged in dangerous missions did not bring the matter any further forward. It merely brought to light the reluctance of a number of governments to agree to any convention on the subject that would, in their eyes, entail risks to the sovereignty and security of the State. In the end, the matter was simply postponed to the next session. With this, the scene shifted to Geneva, where the International Committee of the Red Cross (ICRC) resumed its preparatory discussions and expert consultations. Most important among these were two meetings, held in January and March 1973, of an Advisory Group of Government Experts chosen from among those who had, at the second session of the Conference of Government Experts, held posts as vice-presidents of the Conference, chairmen of Committees, or rapporteurs; the rest of the Group was made up of experts from the permanent members of the Security Council who did not already fall within the first category (e.g., China, who was taking part for the first time in the discussions) and from Switzerland. In these meetings, the draft articles which the ICRC intended to put before the diplomatic conference were scrutinized and assessed as to their potential acceptability. The consultations in this Group led the ICRC to modify the draft articles in a number of places. 2 The Draft Protocols, 1973 As the outcome of these preparatory activities, the ICRC published in June 1973 the definitive text of two Draft Additional Protocols to the Geneva Conventions of 12 August 1949, one (Draft Protocol I) relating to the protection of victims of international armed conflicts and the other (Draft Protocol II) to the protection of victims of non-international armed conflicts. A Commentary followed in October 1973. The Swiss Government sent these documents to all States party to 8

9

Other expert meetings dealt with the problem of penal sanctions, the question of a distinctive sign for civil defence, and signalling and identification systems for medical transports by land and sea. Texts of the Conventions in 75 U.N.T.S.; Trb. 1951 Nos 72-75; D. Schindler & J. Toman, The Law of Armed Conflicts (1973) p. 289 et seq.

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the Geneva Convention of 1949 and to Member States of the United Nations, with the diplomatic conference scheduled for February/March 1974 in view. The ICRC, on its part, sent the documents to the national Red Cross (Red Crescent, Red Lion and Sun) societies so as to enable them to discuss the Draft Protocols at the XXIInd International Red Cross Conference, convened for November 1973 at Teheran. As is evident from the titles of the two Draft Protocols, the ICRC had maintained the distinction between international and non-international armed conflicts. Draft Protocol I would apply “in the situations referred to in Article 2 common to” the Geneva Conventions (Art. I-1), Draft Protocol II “to all armed conflicts not covered by Article 2 … taking place between armed forces or other organized armed groups under responsible command” (Art. II-1). The latter Article excludes moreover expressly “situations of internal disturbances and tensions, inter alia riots, isolated and sporadic acts of violence and other acts of a similar nature.” The proposed Articles obviously leave open the important question of the status of “wars of national liberation”. In its Commentary, the ICRC points out that a majority of the experts consulted for a variety of reasons did not accept the classification of these wars as international armed conflicts. The ICRC had, however, thought it advisable to add to draft Article I-42 (“New category of prisoners of war”) a footnote suggesting as a possible solution of the problem the inclusion in this Article of a paragraph whereby “in cases of armed struggle where peoples exercise their right to self-determination as guaranteed by the United Nations Charter and the ‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations’”, prisoner-of-war treatment would be granted to “members of organized liberation movements” who would comply with the conditions spelled out in the Article. Contrary to what their titles suggest, the Draft Protocols are not solely concerned with “victims of armed conflicts”: besides chapters on the wounded, sick and shipwrecked, prisoners of war (or, in Draft Protocol II, “persons in the power of the parties to the conflict”) and the civilian population, they also contain sections on methods and means of combat, which can by no stretch of the imagination be brought under that heading. In fact, much of their contents originates in – and develops – the so-called law of The Hague: the customary law of warfare, codified in part in the Hague Regulations of 1899, revised in 1907. The Draft Protocols contain, moreover, important proposals aiming at the reinforcement of 10 11 12

Conspicuously, in this text all reference to Art. 3 common to the 1949 Geneva Conventions has been omitted; see 3 NYIL (1972) p. 18, at pp. 56-57. For the use of this term, see, by this author. The Law of Warfare (1973) pp. 24-27. Texts of the Regulations in Schindler & Toman, op. cit. note 9, p. 69 et seq; De Martens N.R.G., 2ème série, Vol. XXVI (1899) pp. 949-979; De Martens N.R.G., 3ème série, Vol. III (1907) pp. 461-503.

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the system of supervision by Protecting Powers or substitute organizations, filling lacunae in the system of penal sanctions, et cetera. For present purposes, it may suffice to highlight some of the more particularly salient features of the Draft Protocols. First, as concerns prisoners of war, Article I-42 introduces (or, rather, claims to introduce) a “new category of prisoners of war”. Actually, the so-called new category consists of the members of organized resistance movements, already mentioned in Article 4 of the Third Geneva Convention of 1949. The novelty consists mainly of a decidedly more flexible wording of the conditions such movements have to fulfil: a) b) c)

that they are under a command responsible to a Party to the conflict for its subordinates; that they distinguish themselves from the civilian population in military operations; that they conduct their military operations in accordance with the Conventions and the present Protocol.

While the traditional requirements of a “fixed distinctive sign recognizable at a distance” and “carrying arms openly” have thus disappeared, this is not the case with the requirements of a responsible command and distinction from the civilian population; both, indeed, essential guarantees for any orderly conduct of hostilities. Perhaps the most conspicuous feature of the proposed text is, however, the exclusive reference to resistance movements: this term, which originated out of the peculiar circumstances of the Second World War, seems hardly adequate to cover the many varied forms in which guerrilla warfare has appeared since that time. Thus, although the proposed Article 42 brings significant improvements to the existing law on the subject, at the same time it evidently bears all the characteristics of a compromise between conflicting opinions. In Draft Protocol II, all express reference to the concept of prisoners of war is carefully omitted. Instead, Part II under the title “Humane Treatment of Persons in the Power of the Parties to the Conflict” sets out, first, a number of fundamental principles elaborating the idea of human treatment in respect of “all persons who do not take a direct part of who have ceased to take part in hostilities, whether or not their liberty has been restricted” (right to respect for their person, honour and religious convictions and practices; prohibition of discrimination, of violence to life and person, of the taking of hostages, of acts of terrorism, et cetera; Art. 6), adding in Article 7 a specific prohibition “to kill, injure, ill-treat or torture an adversary hors de combat.” Article 8, applicable only to the category of “persons whose liberty has been restricted by capture or arrest for reasons in relation to the armed conflict”, repeats once again the requirement of humane treatment. It then goes on to lay down certain rules which the parties to the conflict should respect without qualification (such as reasonable accommodation and adequate water, food and clothing) and

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other provisions which they should respect “within the limits of their capabilities” (e.g., permission to receive relief, to practice one’s religion, to send and receive letters and cards; places of internment of detention not close to the combat zone). The Article prohibits reprisals against this category of persons and requires the parties to the conflict to facilitate visits by a body such as the ICRC. Evidently, this Article contains the nucleus of a prisoners of war regime, adapted to the specific exigencies of non-international armed conflict, a situation where the parties will more likely than not lack the capacity to implement a set of detailed and far more rigid rules such as are found in the Third Convention for the event of an international armed conflict. One element basic to a real prisoners of war regime is conspicuously absent from Article 8, however. It is the prohibition against punishing captured adversaries for merely having taken part in the hostilities. On the contrary, both Article 9 in general and Article 10 with respect to the special category of persons “found guilty of an offence in relation to the armed conflict” contain nothing but a number of principles of due process. In the Commentary to Article 10, the ICRC states in so many words that “the present draft Protocol does not affect the right of the constituted authorities to prosecute and sentence persons found guilty of an offence” (leaving open, incidentally, whether the insurgent party could possess the same right – or for that matter consider themselves “constituted authorities”). Accordingly, the Article (para. 5) calls upon courts when sentencing persons solely for their participation in hostilities to “take into consideration, to the greatest possible extent, the fact that the accused respected the provisions of the present Protocol.” This provision surely constitutes a perfect specimen of a minimum requirement: indeed, to someone who, like the present author, is thoroughly convinced of the essential futility of any attempt to contain by penal means a situation of political unrest which has developed into an armed conflict, it is even less than that. It is not at all unlikely that the ICRC has itself been aware of the total insufficiency of the proposed provision; the Commentary points out that Draft Protocol II, “which does not confer any impunity on combatants for having taken part in hostilities, nevertheless imposes upon them certain obligations which they must fulfil towards adverse armed forces as well as towards the civilian population”, and it explains that the motive behind the proposed text is “to encourage combatants to respect the Protocol in spite of any penal prosecutions that might be brought against them.” It does not seem open to doubt that to achieve this purpose a stronger incentive is needed than the one offered in the proposed Article 10(5). Indeed, the one incentive that might be expected to have the desired effect would consist precisely of impunity for the mere fact of having taken part in hostilities. A subject closely connected with the foregoing is the question of the death penalty. Draft Protocol II, while not excluding the imposition of this penalty for offences related to the armed conflict, provides that it “shall not be carried out until the hostilities have ceased.” This is probably the most that can be achieved

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here, and it would certainly constitute an important step towards implementation of the “right to life” of the persons in question. Specific provisions, both in Draft Protocols I and II, prohibit the imposition of the death penalty for an offence in relation to the armed conflict committed by persons below eighteen years of age (Articles I-68, II-10) and of carrying out the same penalty on pregnant women (Articles I-67, II-10). As the Commentary takes pains to point out, the latter prohibition is a measure of protection, not of the women, but of their unborn children. It is a sad reflection that such a provision, and indeed the entire set of restrictions in respect of the death penalty, are still necessary in this world and will probably remain so for a long time to come. General protection of the civilian population is the next item important enough to be discussed here. Starting from the basic principle of distinction between civilians and combatants (1-43, 11-24) the Draft Protocols provide definitions, first, of civilians and the civilian population. A civilian, according to Article 1-45, is “any person who does not belong to one of the categories of armed forces” entitled to prisoner-of-war status under Article 4 of the Third Geneva Convention of 1949 or Article 42 of the Draft Protocol. In Draft Protocol II (where a reference to prisoner-of-war status was not possible) it is “any person who is not a member of armed forces” (Art. 25). These definitions are in conformity with the preference expressed in the second session of the Conference of Government Experts by a number of experts, who had added, however, that persons falling within the definition would enjoy protection as civilians “unless and for such time as they take a direct and immediate part in hostilities.” The latter clause is evidently necessary to obviate the absurd situation that a person not belonging to an armed force would be entitled to protection as a civilian even though he behaved in every respect as a combatant. In order to meet this difficulty the ICRC proposes to provide under the heading “protection of the civilian population” (Articles 1-46, 11-26) that “civilians shall enjoy the protection afforded by this Article unless and for such time they take a direct part in hostilities”. The express limitation to “this Article” has, however, a remarkable – and probably unintended – effect when another provision in the same Section is taken into consideration: in Article I-51, the Parties to the Conflict are placed under an obligation to take, “to the maximum extent feasible”, “the necessary precautions to protect the civilian population, individual civilians and civilian objects under their authority against the dangers resulting from military operations.” Taken literally, this would mean that a “civilian” who takes a direct part in hostilities would have to be protected by his authorities, not only against the impact of enemy counteractions, but even against the dangers resulting from his own activities. In order to avoid such absurd consequences, it

13 14

3 NYIL (1972) p. 18, at p. 34. Draft Protocol II does not contain a similar provision.

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seems preferable to attach the exception directly to the definition of a “civilian” in Articles I-45 and II-25. The “civilian population” is defined relative to the concept of “civilian”: it “comprises all persons who are civilians.” This definition does not include those “civilians” who are taking a direct part in hostilities. There is moreover a provision that the presence of “individuals who do not fall within the definition of civilians” (that is, members of armed forces) “does not deprive the population of its civilian character.” Another important provision retained from earlier drafts is the rule that in case of doubt a person shall be presumed to be a civilian. Under the heading “civilian objects”, Draft Protocol I in Article 47 provides first of all a definition of military objectives: “those objectives which are, by their nature, purpose or use, recognized to be of military interest and whose total or partial destruction, in the circumstances ruling at the time, offers a distinct and substantial military advantage.” This definition is in large measure copied from a proposal made at the second session of the Conference of Government Experts. That proposal, however, by the use of “or” between the two parts of the sentence made the element of military advantage in an object’s total or partial destruction a separate ground for considering it a military objective, while the present draft text, by using “and”, turns it into a cumulative requirement. Another striking modification is the introduction, in the first half of the sentence, of the word “purpose” (or, rather, in conformity with the original French text, “destination”). In the Commentary, this is explained as the “future function” of an object, whereas “use” stands for “present function”. It is incomprehensible that the ICRC thought fit to admit this element of “future function” into the proposed definition of military objectives. If, to take an example, according to the military planning in a given country a school is destined in certain circumstances to be converted into a barracks but has not in fact been so converted, this destination would nonetheless provide an excuse to consider it a military objective. The Commentary offers the following cryptic explanation: “An object may be of value either to the civilian population or to the armed forces, or to both simultaneously… In determining the purpose or use of an object, therefore, the time and place of the attack must be taken into consideration.” This is putting matters upside down; when an attack is contemplated on a given object, the issue to be determined is the military value of the object or, in other words, the military advantage to be gained by its capture or total or partial destruction. These factors evidently depend on the use to which the object is actually put. Admittedly, one can imagine a military commander who wants to neutralize an object because of its potential use, “purpose” or destination, but to sanction this expressly in a legal text is tantamount to abandoning all attempts at restricting the category of objects which, as “military objectives” may be made the legitimate object of attack. 15

3 NYIL (1972) p. 18, at pp. 35-36.

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“Attacks”, according to Article 47(1), “shall be strictly limited to military objectives”; hereafter follows the definition mentioned above. The logical corollary of this principle is that objects not constituting military objectives shall not be made the object of attack. Paragraph 2 duly lays down this rule, but not without first having mentioned “objects designed for civilian use, such as houses, dwellings, installations and means of transport.” According to the Commentary, this language constitutes a “flexible definition of civilian objects” together with a list of such objects “given purely as an example.” Neither the one nor the other seems, however, very useful. A house may be “designed for civilian use” but its actual use will decide whether it does or does not constitute a military objective. The proposed paragraph admits this by adding to the prohibition of attack the phrase “except if they are used mainly in support of the military effort.” Apart from the confusion which the reference to the “military effort” is apt to create, a graver objection is that the text of the paragraph makes the exception equally applicable to the prohibition of attack on non-military objectives. This illogical construction, whereby an object is said not to constitute a military objective and yet to be “used mainly in support of the military effort”, was already criticized by this author on an earlier occasion. Parallel to the principle prohibiting attacks on non-military objectives, Article 46 lays down the categorical rule that “the civilian population as such, as well as individual civilians, shall not be made the object of attack.” The principle, reaffirmed already on a number of occasions by the UN General Assembly and other bodies, is elaborated in the Article into some further rules: prohibition of “methods intended to spread terror among the civilian population”, prohibition of attacks “against the civilian population or civilians by way of reprisals”, prohibition of the “employment of means of combat, and any methods which strike or affect indiscriminately the civilian population and combatants or civilian objects and military objectives.” The latter prohibition, which might be thought to rule out at least the use of the megaton class of nuclear weapons and which in any event amounts to a prohibition (which the Article goes on to state explicitly) of area bombardment on “a zone containing several military objectives, which are situated in populated areas, and are at some distance from each other”, actually falls under another principle as well, viz., that of proportionality. It is a much disputed question whether a principle of proportionality can find a place in a humanitarian instrument. After all, the principle starts from the presumption that losses will occur among the civilian population, and it merely attempts to curb these by forbidding disproportionate damage. The ICRC, having carefully weighed the various aspects of the question, decided to retain the concept notwithstanding earlier criticisms. Not only was the concept retained, but 16 17 18

Ibid., at p. 35. Notably in GA Res. 2444 (XXII) and 2675 (XXV); see 2 NYIL (1971) p. 68. 3 NYIL (1972) p. 18, pp. at 39-40.

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the Draft Protocol makes mention of it in three different places. First, in the Article under discussion (Art. 46) the general prohibition to use indiscriminate means or methods is followed by a specific rule prohibiting “to launch attacks which may be expected to entail incidental losses among the civilian objects to an extent disproportional to the direct and substantial military advantage anticipated.” Then, in Article 50, under the heading “precautions in attack”, both “those who plan or decide upon an attack” and “those who launch” it are required to avoid, to the greatest possible extent, disproportionate damage. Article 50 is not however content with avoidance of disproportionate damage. It places the planners and decision makers under an obligation, first, to ensure (or, in an alternative proposal, to take all reasonable steps to ensure) that the objectives under consideration “may be attacked without incidental losses in civilian lives and damage to civilian objects in their vicinity being caused.” Only after this primary obligation to avoid all losses follows, “at all events”, the avoidance of disproportionate losses. Similarly, the Article lays down the requirement “in the choice of weapons and methods of attack” to take “all necessary precautions … so as not to cause losses in civilian lives and damage to civilian objects in the immediate vicinity of military objectives to be attacked.” This seems an absolutely correct construction; first comes the obligation to make every effort to avoid all civilian losses and damage, and only to the extent that this proves impossible is it permissible to fall back on the standard of proportionality, formulated in strictly objective and severely restrictive terms (the “direct and substantial military advantage anticipated”). Always under the heading “general protection of the civilian population” mention should be made of the prohibitions, in Articles 48 and 49, against attacking objects indispensable to the civilian population and works and installations containing dangerous forces. The first prohibition seems more realistic than the second: under the latter, attacks would be prohibited on “dams, dykes and nuclear generating stations.” Obviously, attacks on such objects may create grave risks or even cause actual disasters. But, while at all events not every Dutch dam or dyke is so loaded with danger, the present proliferation of nuclear power plants and the increasing dependence on the energy they generate make it highly improbable that belligerents would in all circumstances be ready to forgo their elimination. Both in Articles 48 and 49, reprisals against these special categories of objects are prohibited, whereas no such prohibition is found in Article 47 (“general protection of civilian objects”). This distinction, which originates in the hesitation of the ICRC to propose a complete ban on all reprisals against the civilian population and civilian objects, is to my mind completely unjustified. Leaving aside the proposals on special protection (of non-defended and neutralized localities, Articles 52 and 53; civil defence, Articles 54-59; women 19 20

Ibid., at pp. 37-38. Ibid., at pp. 40-45.

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and children, Articles 67-69), as well as the proposed Articles on protection of the civilian population in Draft Protocol II (comparable to, and often identical with, those in Draft Protocol I, although in general somewhat more modest), we next turn our attention briefly to “methods and means of combat”. The opening Article of this Section in Draft Protocol I, Article 33, does not much resemble earlier ICRC drafts. It now contains, after a reaffirmation of the basic principle that belligerents have no unlimited right to adopt methods and means of combat (Hague Regulations, Art. 22), the prohibition “to employ weapons, projectiles, substances, methods and means which uselessly aggravate the sufferings of disabled adversaries or render their death inevitable in all circumstances”; language which, as the Commentary to Article 33 explains, is borrowed from the St. Petersburg Declaration of 1868. Two things strike the eye in this new proposal. First, there is no mention here of the well-known norm of customary law prohibiting the employment of means of warfare calculated to cause unnecessary suffering (or, in another and probably more accurate translation of the original French text of Article 23(e) of the Hague Regulations, “apt to cause superfluous injury”). The lacuna is more apparent than real, though, for this norm is actually derived from the St. Petersburg principle. Second, any reference to specific weapons that might be deemed to fall under the proposed prohibition is conspicuously absent; a point to which we shall revert at a later stage in this paper. It may be recalled that another standard governing the choice of means of warfare is expressed in Article 46, where the employment of means of combat having indiscriminate effect is prohibited. A third norm, proposed by the ICRC in the Conference of Government Experts, does no longer find a place in the Draft Protocol: the prohibition of “particularly cruel” weapons. As the meaning of this phrase was never very clear in the first place, its omission does not represent a great loss. A useful addition, in contrast, is provided by Article 34 where the Contracting Parties are obliged “in the study and development of new weapons or methods of warfare … [to] determine whether their use will cause unnecessary injury.” The scope of this provision, which goes back to an American idea expressed in the Conference of Government Experts, is not yet sufficiently clear: does it only lay an obligation on individual States, or does it assume some sort of collective determination? Even if only the first assumption turns out to be the correct interpretation of the provision (or the length the Contracting States are prepared to go) it might prove a powerful instrument in the hands of those who want to prevent undesirable developments in the field of weapons. Even now, it is gradually dawning on an increasing number of those involved in the design and produc21 22

Ibid., at p. 28. Art. II-20 is identical to Art. I-33. Text of the Declaration in De Martens N.R.G., 1ère série, Vol. XVIII, pp. 474-475; Schindler & Toman, op. cit., p. 95 et seq.

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tion planning of new weapons that an assessment of the human suffering which the use of a new weapon is likely to entail should constitute an important, if not a dominant, factor in the decision whether the armed force should be equipped with it at all. Perfidy is prohibited in Article 35. It defines this notoriously elusive concept as “acts inviting the confidence of the adversary with intent to betray that confidence.” The Commentary clarifies it further: “Like ruses, perfidy involves simulation; but in addition it aims at creating falsely a situation in which the adversary feels obliged by a legal or moral rule to abstain from any hostile act or to neglect to take precautions which would be in fact necessary, thereby putting himself at a disadvantage.” This explanation goes to the heart of the matter and in fact provides a far better description of perfidy than does the definition in the Article. Yet, as a legal definition it would probably be wholly unsatisfactory; for that purpose, a simpler formula such as the one proposed seems preferable. It remains to be seen, however, whether “confidence” is an adequate term to convey the meaning which the authors rightly give to the concept of perfidy. Besides perfidy, the Article also defines the opposite concept, viz., ruses of war: these are said to consist in “those acts which, without inviting the confidence of the adversary, are intended to mislead him or to induce him to act recklessly.” So much will be clear from this language, that a thin dividing-line separates the lawful ruse from the illegal act of perfidy. It is therefore very useful that this and the following Articles provide a number of examples, both of the ruse of war (“camouflage, traps, mock operations and misinformation”) and of the perfidious act (feigning a situation of distress, disguise of combatants in civilian clothing, misuse of recognized signs). The Section on “methods and means of combat” provides other useful additions to, or clarifications of, the existing law relating to combatants and combatant behaviour. Thus, Article 38 prohibits “to kill, injure, ill-treat or torture an enemy hors de combat”, a rule which Article 39 makes specifically applicable to the “occupants of aircraft in distress … when they are obviously hors de combat, whether or not they have abandoned the aircraft in distress.” Article 40, entitled “independent missions”, deals with combatants who, recognizable as such, penetrate into enemy-controlled territory and either “gather or attempt to gather military information for further transmission” or “destroy or attempt to destroy military objectives.” These laborious descriptions of activities which might at first glance perhaps be thought to constitute spying or sabotage, serve precisely to establish that the activities in question shall not be so considered, and that such combatants, in the event of their capture, shall be entitled to prisoner-of-war status. This is a far from superfluous provision, not only in the light of the history of the Second World War (where Hitler in 1942 issued his ill-famed Kommandobefehl or 23 24

This Article is not repeated in Draft Protocol II. Art. II-21 is couched in identical language.

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Commando Order) but also of the widespread employment of such “independent missions” in other, more recent armed conflicts. A final, equally important, provision in this section lays down that all armed forces, including resistance movements, “shall be organized and subject to an appropriate internal disciplinary system.” While this may perhaps seem to be an intolerable intrusion into internal affairs, it is, on the contrary, a most useful requirement which, according to Article 41, serves to ensure “respect for the present rules and for the other rules of international law applicable in armed conflicts.” Indeed, international society has a legitimate interest in the existence or non-existence of disciplinary systems in armed forces, whether regular or otherwise. This leads us automatically to the last question to be discussed here: viz. the proposals relative to the implementation and supervision of the Draft Protocols and of international humanitarian law in general. With regard to supervision, Draft Protocol I contains a number of the ideas discussed in the Conference of Government Experts: provisions designed to reinforce the Protecting Powers system (Art. 5), proposals envisaging the training, in peacetime and on a national basis, of qualified personnel who may serve to facilitate the application of the Geneva Conventions and the Protocol, e.g. by acting as delegates for Protecting Powers (Art. 6) and a proposition to the effect that two-thirds of the Parties to the Protocol, or the ICRC, may ask for a meeting of Contracting Parties “to study general problems concerning the application” of the Protocol (Art. 7). As was to be expected, Article 5 does not provide for any automatic functioning, either of Protecting Powers or of a substitute organization. In particular, it does not place any obligation on the ICRC to offer to act as substitute irrespective of its own assessment of the willingness of the Parties to the conflict to accept its supervisory activities, nor does it make provision for the functioning of a United Nations organ or other body under the aegis of that organization. In other words, although the proposed provisions, once accepted, would bring a distinct improvement to the system of supervision, it would be wrong to expect too much of them. In Draft Protocol II, propositions relating to outside supervisory activities are obviously far more modest. Indeed, pride of place is given to the statement that “nothing in the present Protocol shall be interpreted … as authorizing third States to intervene in the armed conflict” (Art. 4); and instead of a system of 25 26

27

See, by the present author, Belligerent Reprisals (1971) p. 184 et seq. In Draft Protocol II, the ideas behind these Articles are reduced to their simplest form in Art. 22, which provides that “it is forbidden to order that there shall be no survivors, to threaten an adversary therewith and to conduct hostilities on such basis”; crude language which reflects the harshness and cruelty which often characterizes internal armed conflict. Cf. 3 NYIL (1971) p. 18, at pp. 46-49.

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third States functioning as Protecting Powers, one finds some references to the possibility of parties to the conflict seeking or accepting the services of a body such as the ICRC (visits to persons whose liberty has been restricted, Art. 8; co-operation in the observance of the Protocol, Art. 39). When compared to the machinery provided in an instrument such as the European Convention on Human Rights and Fundamental Freedoms, these proposals are very meagre. But when one takes into account that the present Draft Protocol is designed to find application in situations of internal armed conflict occurring all over the world, one readily realizes that for the time being nothing better can reasonably be expected. Draft Protocol I under the heading “execution of the Conventions and of the present Protocol” contains a number of proposals aiming at a (more) effective implementation of these instruments. A first set of proposals deals with such subjects as “orders and instructions to ensure observance” (Art. 70), employment of legal advisers in the armed forces (Art. 71), and dissemination of the Conventions and the Protocol “so that those instruments may become known to the armed forces and to the civilian population” (Art. 72). In a second Section, the repression of violations is envisaged. First, the system of “grave breaches” as found in the Geneva Conventions of 1949 is made applicable to the Protocol as well, without any clear indication being given of what should be understood by grave breaches in the context of this instrument: Article 74 confines itself to making the system applicable “to the repression of breaches of the present Protocol, including that of the grave breaches committed against protected persons or protected objects within the meaning of Article 2(c).” Nor does it help a great deal to read in Article 2(c) that “‘protected persons’ and ‘protected objects’ means persons and objects on whom or on which protection is conferred by the Articles, Chapters or Sections which concern them in Parts II, III and IV” (dealing respectively with the wounded, sick and shipwrecked, methods and means of combat and prisoner-of-war status, and the civilian population). It will be absolutely necessary to supplement these provisions with a clear, unequivocal indication of those rules in Draft Protocol I the violation of which is apt to constitute a grave breach, and of the acts which do in fact constitute such grave breaches. Article 76 deals with two aspects of the problems of penal responsibility for failure to act. First, it provides that breaches of the Conventions or the Protocol “resulting from a failure to perform a duty to act” shall be repressed, irrespective of whether the violation constitutes a “grave breach” in the technical sense or a lesser offence. Second, it lays penal responsibility on superiors for a breach committed by a subordinate “if they knew or should have known that he was committing or would commit such a breach and if they did not take measures within their power to prevent or repress the breach.” This provision, the underlying idea of which was applied in a number of war crimes trials after the Second World War, goes back to a Dutch initiative at the Conference of Government Experts

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which, in turn, was the result of persistent urging by Professor Röling, former member of the International Military Tribunal for the Far East in Tokyo. The reverse situation is treated in Article 77, where it is laid down, on the one hand, that no one “shall be punished for refusing to obey an order of his government or of a superior which, if carried out, would constitute a grave breach” of Conventions or Protocol, and, on the other, that “the fact of having acted pursuant to an order of his government or of a superior does not absolve an accused person from penal responsibility if it be established that, in the circumstances at the time, he should have reasonably known that he was committing a grave breach … and that he had the possibility of refusing to obey the order”. These provisions, it should be emphasized, apply exclusively to the case of grave breaches, a restriction which here seems reasonable. As the Commentary points out, the reference in the final sentence to the “possibility of refusing to obey” has been introduced to meet the objection that without such an escape clause soldiers might be in a difficult position “as they were compelled by military laws and regulations to obey orders issued to them.” This language is perhaps somewhat too general; true, a certain measure of obedience is at the root of all “military laws and regulations”, but fortunately it is only in relatively few countries that this indispensable element is even to this day converted into the categorical imperative of “Befehl ist Befehl”. For obvious reasons, Draft Protocol II contains no provisions at all concerning penal repression of breaches, whether grave or otherwise. There are, on the other hand, some interesting proposals aimed at improving its effective implementation. One is found in Article 5, where it is stated that “the rights and duties of the parties to the conflict under the present Protocol are equally valid for all of them.” This is an attempt to solve the problem of how to bind the insurgent party to an international legal instrument to which they are not, and cannot be, a party in the formal sense. As the Commentary explains, Article 5 is intended to imply that Protocol II, although constituting “an engagement entered into by the State”, is “not only binding upon the Government but also upon the constituted authorities and the private individuals” in the territory, “upon whom certain obligations are thus imposed”; “the rights and duties of private individuals extend over a range that is identical to that of the rights and duties of State organs.” While it may be open to some doubt whether the statement in the Commentary is correct that “this is a technique frequently adopted in contemporary international law”, or at any rate that it is successfully so adopted, in the present area of the law of armed conflict applicable to non-international armed conflicts it may well prove to constitute the one available, effective technique. This is especially true if it is combined with certain other proposals in Draft Protocol II: viz., obligation upon the parties to the conflict to “take measures to ensure observance of this Protocol by its military and civilian agents and persons subject to its author28

Ibid., at p. 49.

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ity” (Art. 36) and obligation to disseminate the Protocol both in time of peace and of armed conflict (Art. 37). 3

Further Preparations

As we saw in the foregoing, the Draft Protocols do not contain any proposals relative to the prohibition or limitation of the use of specific weapons. Yet, there could be little doubt that here was another area of the law of armed conflict urgently in need of some modernization: after all, the most recent effort in this field was the Geneva Gas Protocol which dates back as far as 1925. It is certainly no exaggeration so say that important weapon developments have come about since that time. In view of these facts, the Conference of Government Experts had suggested that the ICRC convene a meeting of experts on the matter. Following this suggestion, the ICRC brought together a working group of military, medical and legal experts from various countries and organizations, who took part in the discussions in their private capacities. In two sessions (26 February - 2 March and 12-15 June 1973) they drew up the text of a report on “Weapons that May Cause Unnecessary Suffering or Have Indiscriminate Effects”. The ICRC subsequently published the report and sent it to all Governments of States party to the Geneva Conventions, national Red Cross Societies and interested non-governmental organizations (such as the NGO Special Committee on Disarmament and SIPRI). The report treats specified categories of conventional weapons, i.e., weapons not belonging to the class of nuclear, biological/bacteriological or chemical means of warfare. The categories of weapon singled out for examination are the following: small-calibre projectiles (and in particular high-velocity ammunition), blast and fragmentation weapons, time-delay weapons and incendiary weapons. Moreover, various types of laser are discussed under the heading “potential weapon developments”. Attention is focused in particular on anti-personnel weapons, or the anti-personnel effects of certain weapons. These are examined in the light of existing legal standards: prohibition against the employment of means of warfare liable to cause unnecessary suffering or superfluous injury, prohibition of indiscriminate warfare. As the latter standard is in particular far from clear (literally any weapon being capable of indiscriminate use) the report refers with some greater precision to those weapons which by their nature are incapable of being directed with any certainty to specific targets or which in their typical or normal use are not delivered with any certainty to such targets. The purpose of the report was not to condemn the employment of any specific weapons, nor even to put forward any proposals for their future prohibition. 29 30

Text in 94 L.N.T.S. p. 65; Schindler & Toman, op. cit. note 9, p. 109 et seq. Ibid., at pp. 28-30, 53-55.

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Yet, even on the basis of the relatively limited information set out in the text, the experts did not hesitate to offer as their conclusion – endorsed at least implicitly by the ICRC – “that several categories of weapon tend to cause excessive suffering and particularly severe injuries or may, either by their nature or because of the way in which they are commonly used, strike civilians and combatants indiscriminately.” And, they added by way of modest suggestion, “the risks involved in their rapid proliferation and use [i.e. of certain of these weapons] would seem to constitute good reasons for intergovernmental discussions concerning these weapons with a view to possible restrictions upon their operational use or even prohibition”. It would be difficult to find gentler language to convey the message that something effective ought to be done about these weapons, and fast. The ICRC in its introductory remarks expressed the hope that the report would “prove useful and stimulating” and it declared itself ready, if so desired, to “convene a conference of government experts in order to contribute to the promotion of relevant international humanitarian law.” Enigmatic words, which were probably designed to let it be known that the ICRC (a) still entertained serious doubts as to the desirability of its involvement in the project, (b) felt that at all events the stage had not yet been reached where formal propositions for legal regulation could usefully be made, but (c) rather than withdrawing from the project, would continue to contribute to the best of its ability to a successful conclusion of the work, even in this area of the law of armed conflict where the preponderance of all kinds of military, technical, economic and political considerations is more marked than in other areas of that law. A short time after the publication of the ICRC report, an even more comprehensive and elaborate study on the same subject was published by the Swedish Ministry for Foreign Affairs. The report, entitled “Conventional Weapons, Their Deployment and Effects from a Humanitarian Aspect”, contains the result of an investigation carried out by a small working group of Swedish experts and the recommendations they arrived at for the modernization of the law in this area. Rather than being confined to a description of certain reprehensible weapons, their characteristics and effects, the Swedish report also puts forward some extremely useful suggestions concerning the construction and use of specific weapons as well as alternative constructions or weapon systems. Thus, with respect to fragmentation weapons, rules are proposed for their construction: no substances which may have serious toxic effects, fragment material must be X-ray detectable, construction so that only a limited percentage of the persons affected by the explosion will be hit by four or more fragments with a certain energy. 31

To demonstrate the degree of technical precision displayed in the report, it may be interesting to quote this particular construction rule in full: A fragmentation warhead primarily adapted for use against combatants in the open shall be constructed in such a way that if its effects hit standing, unprotected soldiers operating in completely open and flat country with no

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Then, as these construction rules do not affect the possible indiscriminate effects of primarily anti-personnel fragmentation weapons, three alternative operational rules are proposed: use only against well-localized military targets within an area of no more than one square kilometre; no dropping of certain cluster bombs from airplanes or helicopters nor launching of such weapons by missiles or unguided heavy rockets; prohibition of the use of cluster bombs which eject a great number of small fragments. As for alternative constructions or weapons, the report points out that fragmentation weapons which yield fewer but larger fragments with a limited initial velocity would provide highly effective anti-personnel weapons; furthermore, in the eventuality of anti-personnel cluster bombs with fragmentation warheads being completely banned, bombs or shells with reduced area coverage could take their place. By the publication of this valuable, both realistic and idealistic report, the Swedish Government has once again made a major contribution to the work in this area of conventional arms limitations, where it has for a long time played a leading role. The whole matter of the “reaffirmation and development of international humanitarian law applicable in armed conflicts” was next taken to the XXIInd International Conference of the Red Cross, held at Teheran in November 1973. The competent commission of the Conference, the Commission on International Humanitarian Law, considered the two Draft Protocols and took note of proposals bearing on the subject. In view of the strictly limited time available for this item on its agenda, no real in-depth discussion could be expected. Yet, the debate was useful in that it already provided an indication of the attitudes Governments might be expected to take at the Diplomatic Conference. In this respect, a point of particular importance was the sharp controversy which arose over the nature of international humanitarian law. There were those, on the one side, who, starting from the prohibition against the use of force and the criminality of wars of aggression, considered that a distinction must be made “between just and unjust wars, between aggressors and victims of aggression, since the purpose of humanitarian law was to provide protection only to victims of acts of aggression”. On the other side stood those delegates who advocated that humanitarian law should be kept “apart from political, ideological and subjective considerations, while top priority should be give to objective criteria, such as preventing avoidable suffering, distinguishing the civilian population from combatants and civilian objects from military objectives, and preventing treacherous

32

obstacles, the number of soldiers hit by four or more fragments with an impact energy exceeding 5 joules may not, on the average, exceed 20 per cent of the number of soldiers put out of action. See: Report on the study by the XXIInd International Conference of the Red Cross of the Draft Additional Protocols to the Geneva Conventions of 12 August 1949, published by the ICRC in Jan. 1974 as an official document for the Diplomatic Conference.

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methods of war, so as to provide all conflict victims with the protection to which they are entitled.” It is not difficult to realize that in this controversy the latter view is the one in conformity with the true nature of international humanitarian law as it has developed through the 19th and 20th centuries, whereas the former view is completely destructive of the basic values on which it rests. As the representative of the ICRC pointed out, one should not confuse jus ad bellum and jus in bello. Another issue, connected in some respects with the previous one, concerned the status of wars of national liberation. While some delegates rejected the idea that armed conflicts would be classified according to any but objective criteria and, hence, that the political cause of a conflict might determine its classification, many others took the view that wars of national liberation must be considered as international armed conflicts and humanitarian law was fully applicable in such wars. Needless to say, the latter group were not satisfied with the cautious suggestion of the ICRC that a paragraph might be added to Article 42 of Draft Protocol I, to the effect that participants in wars of national liberation who fulfil the traditional (although somewhat more flexibly worded) conditions for combatant status shall be treated as prisoners of war: they favoured a solution whereby it would be clear that the wars in question come within the ambit of Draft Protocol I rather than of Draft Protocol II. Attention was also given to the question of the prohibition or restriction of the use of certain conventional weapons. The debate showed a growing readiness on the part of Governments to take part in discussions which might ultimately lead to such prohibitions or restrictions. On the other hand, there was a clear tendency to avoid too hasty steps which would not only fail to bring about the desired effect but might even jeopardize the work on the Draft Protocols. The deliberations in the Commission on International Humanitarian Law ultimately resulted in the adoption, first by the Commission and subsequently by the plenary Conference, of four resolutions. One of these, Resolution XIII entitled “Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts”, urged Governments to participate in the forthcoming Diplomatic Conference and to use it “to achieve substantial humanitarian gains.” It moreover urged the Diplomatic Conference “to consider inviting national liberation movements recognized by regional intergovernmental organizations to participate in its work as observers in accordance with United Nations practice.” This paragraph in the Resolution was the result of an uneasy compromise between opposing views and, hence, left much unsettled, notably the crucial question of what type of participation was envisaged here for the liberation move33 34 35 36

Ibid., para 7; emphasis as in the original. Cf. 3 NYIL (1972) p. 18, at pp. 54-55. Report, paras. 38-46. Ibid., paras. 93-100.

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ments in question. The Commission had been informed by the CommissionerGeneral of the Diplomatic Conference of the steps the Swiss Government had undertaken to “seek appropriate participation of liberation movements recognized by intergovernmental regional organizations.” Thus far, however, these endeavours had failed to yield results since the liberation movements, or some of them, appeared to demand participation with full rights, including the right to vote. The reference in the Resolution to a status as “observers in accordance with United Nations practice”, far from resolving the issue, was merely designed to postpone it: at the time, there clearly was no such thing as a consistent United Nations practice in the matter, so that each delegation could read into the paragraph its own (or its Government’s) ideas about the modalities of participation by liberation movements. Notwithstanding its deliberate vagueness, however, the adoption of this paragraph amounted to an important decision of principle on an issue which was later to cause a great deal of trouble for the Diplomatic Conference. Resolution XIV dealt with the weapons issue. Endorsing the conclusion in the ICRC report that action was called for on the intergovernmental level, it urged the Diplomatic Conference “to begin consideration at its 1974 session of the question of the prohibition or restriction of the use of conventional weapons which may cause unnecessary suffering or have indiscriminate effects.” It also invited the ICRC to convene in 1974 a conference of government experts to “study in depth” the same question. This was a clear recognition that the matter of weapons prohibitions was in a less advanced stage of preparation than were the questions treated in the Draft Protocols. At the same time, the Resolution expressed with equal clarity the feeling of the Conference that effective action in this field was urgently required. In Resolution XII, the Conference expressed its views with respect to the dissemination of, and instruction in, the existing Geneva Conventions. Resolution XV, finally, requested the Diplomatic Conference to introduce into the Draft Protocols appropriate provisions to strengthen the role of national Red Cross societies, a question we will leave out of discussion here. In the 1973 session of the UN General Assembly the same Committees took cognizance of the various questions at issue in the preparation of the Diplomatic Conference as had been done in 1972. The documents before the Commissions included a brief report of the Secretary-General on recent developments concerning “human rights in armed conflicts” and a much longer, extensive survey of “existing rules of international law concerning the prohibition or restriction of use of specific weapons.” The latter document had been prepared by the Secretariat pursuant to the request contained in GA Res. 3032(XXVII).

37 38

A/9123, 19 Sept. 1973. A/9215 (Vols. I and II), 7 Nov. 1973.

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As for the general question of “human rights in armed conflicts”, the Sixth Committee and subsequently the General Assembly adopted two resolutions, one (Res. 3102(XXVII) of 12 Dec. 1973) an innocuous document with as its most salient feature an endorsement of the Teheran formula urging the invitation of national liberation movements recognized by regional organizations “to participate in the Diplomatic Conference as observers in accordance with the practice of the United Nations”. The other, Res. 3103(XXVII) of the same date, was as astonishing as Res. 3102 was innocuous. Under the title “Basic principles of the legal status of the combatants struggling against colonial and alien domination and racist regimes” it “solemnly proclaimed” inter alia the following principles: that “armed conflicts involving the struggle of peoples against colonial and racist domination and racist regimes are to be regarded as international armed conflicts in the sense of the 1949 Geneva Conventions”; that combatants on the side of the struggling peoples should be accorded prisoner-of-war status, and that mercenaries used by the other side should be punished as criminals. This Resolution, rushed through the Sixth Committee without any opportunity for discussion or even serious consideration and subsequently adopted in the General Assembly by a vote of 83 for, 13 against and 19 abstentions, was an evident attempt to prejudge the issues in question before the Diplomatic Conference had even started. In particular the last-mentioned “principle” concerning the position of mercenaries had an ominous sound as it obviously implied (although it did not say so openly) that captured mercenaries would not be granted prisoner-of-war status. It seems particularly regrettable that at the very moment that liberation fighters have come close to finding recognition as combatants entitled to treatment as prisoners of war, another category of combatants, objectionable though they may be, would be robbed of that status. Be this as it may, Res. 3103(XXVII) cannot be accepted as an accurate, let alone as an authoritative, statement of the law: on the contrary, it provided a clear case of abuse of block voting power. The question of conventional weapons is dealt with in Res. 3076(XXVII), adopted by the General Assembly on 6 December 1973 with 103 votes for, none against and 18 abstentions. In its operative part, this resolution went one step further than the Teheran resolution XIV had done; while that resolution had invited the Diplomatic Conference to start discussions on the subject, resolution 3076 asked the Conference to “consider” the questions at issue and “to seek agreement on rules prohibiting or restricting the use of such weapons.” The difference between the two texts cannot be explained by any significant developments which might have come about in the meantime: it can only be attributed to the fact that different persons participated in the drafting process. In this respect, it may seem somewhat paradoxical that the International Conference of the Red Cross, a humanitarian gathering by definition, was the one which had adopted the more cautious language; language, moreover, which was more in conformity with realistic expectations as to attainable goals.

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The protection of journalists engaged in dangerous missions in areas of armed conflicts, finally, was hardly brought any further. Indeed, growing opposition became apparent against the very idea of special protection being granted to the journalists in question: especially among representatives of Third World countries the feeling was widespread that this would really amount to a protection of the vested interests of the big news agencies and the Powers behind these, over the interests and, indeed, the sovereignty of their countries which were more than others exposed to the risk of being the scene of armed conflicts. In view of this opposition, GA Res. 3058(XXVIII) of 2 November 1973 was confined to a statement that adoption of a convention ensuring the protection of the journalists in question “would be desirable.” For the rest, the General Assembly solicited the comment of the Diplomatic Conference on the draft articles elaborated so far and the amendments thereto and decided to continue examination of the question at its next session; a set of decisions which clearly demonstrated the General Assembly’s waning interest in the idea of already made protection for journalists on dangerous missions. With these deliberations in the General Assembly, the preparations at the intergovernmental level for the Diplomatic Conference had come to an end. In January 1974, the Swiss Federal Council duly sent out invitations to participate in the Conference to all Governments of States party to the Geneva Conventions of 1949 or Members of the United Nations. As no solution acceptable to the Swiss Government had been found for the question of the participation of liberation movements, this thorny problem was left for the Conference to decide. So were the questions of admittance of Guinea Bissau and the Provisional Revolutionary Government in South Vietnam, both entities not recognized by Switzerland. Prior to turning our attention to the proceedings in the Diplomatic Conference, brief reference should be made to some documents bearing on the Draft Protocols or related subjects and prepared by various interested organizations. First, the Consultative Assembly of the Council of Europe, following the report of its Legal Affairs Committee, on 27 September 1973 adopted Recommendation 714 on current developments in international humanitarian law. In the Recommendation, the Committee of Ministers were asked to communicate the report to Member Governments and to invite them “to participate in the Diplomatic Conference in 1974 in a positive and liberal spirit.” Specifically, they were asked to lay emphasis on matters as diverse as the “rules applying to armed conflicts not of an international character”, on the one hand, on the other, the applicability of the “general principles of the law of war” to nuclear weapons. 39 40

Annexed to a note of the Secretary-General on the subject (A/9073, 9 July 1973). The report of the Legal Affairs Committee was published as Doc. 3336 on 13 Sept. 1973. The Recommendation invites the Committee of Ministers moreover to “study and promote the adoption of a system of supervision by an impartial international

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Another interesting document was the “Memorandum by NonGovernmental Organisations on the Two Draft Additional Protocols to the Geneva Conventions, 1949”, published shortly before the XXIInd International Conference of the Red Cross. The Memorandum, prepared by a Working Group of the Geneva Special NGO Committees on Human Rights and on Disarmament, offered comments and recommendations in respect of various Articles of the Draft Protocols. The group had been guided by certain fundamental principles which in their eyes “should inspire the rules of international humanitarian law in the future”: establishment of guarantees for effective application; application of fundamental humanitarian principles in all armed conflicts; no unlimited choice of means and methods of combat and targets for attack; protection of the civilian population ensuring their survival; prohibition of certain weapons, to be specified in the Protocols. Finally, SIPRI just days before the opening of the Diplomatic Conference published two documents, both bearing on the issue of conventional weapons. One, published in January 1974, was a proof edition of a Chapter on “Thermal effects of incendiary weapons on the human body”, destined to become Chapter 3 of a forthcoming book on “Incendiary Weapons”. This publication amounts to an improved and extended version of parts of SIPRI’s earlier Interior Report on incendiary weapons. The other document, published in February 1974 under the title “Working papers on international law and the prohibition of unnecessary injury”, opened with a discussion of international legal criteria for the choice of weapons of war, and specifically the principle that weapons should not cause unnecessary suffering or render death inevitable. In the light of that principle, the working paper went on to examine the characteristics and effects, in particular, of high velocity small arms and ammunition. 4 The Diplomatic Conference After all these preparations, would the Diplomatic Conference be a success? This was the question foremost in the minds of the delegates as they assembled for the opening session on 20 February 1974, in the main hall of the modern International Conference Centre at Geneva. It was obvious that numerous difficult problems would confront the Conference, but would it perhaps prove feasible to steer it clear of purely political controversy?

organ of the observance of the rules of humanitarian law” and to “intensify their efforts to ensure dissemination of and instruction in the international humanitarian conventions and their application, not only to military personnel at all levels, but also in schools and universities, including law schools, medical schools and teachers’ colleges.”

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Even during the opening session, this latter question found a – negative – answer in the speech delivered by the one Head of State who participated in the ceremony: Mr. Mokhtar Ould Daddah, President of the Islamic Republic of Mauritania, expressed his conviction that even in dealing with questions of humanitarian law one cannot leave aside the causes and see only the effects; after which he went on to deal with the causes and to denounce, in often vehement language, the actions of such countries as South Africa, Portugal and Israel, all of which he considered to be waging unjust wars – not to mention the many other evil deeds of which he accused them. Israel in particular was so heavily attacked that the Israeli delegation found it necessary to leave the meeting. The idea of the Swiss Government had been that immediately after the official opening session, plenary meetings would follow during which, in some two or three days, the delegations who wished to do so would deliver their general statements, after the questions of the rules of procedure and of the admission of certain non-invited entities would have been rapidly settled. It soon became apparent, however, that no such smooth progress was to be expected. Actually, after the opening session a whole week elapsed before another plenary meeting could even be convened. In the meantime, feverish attempts were made to solve what had become a crucial procedural problem: whether the Conference should first decide the question of invitations or give precedence to a provisional adoption of rules of procedure. It was finally decided that the question of invitations would be disposed of first, that is, without any previous decision on rules of procedure. In the event, one rule of procedure was nonetheless adopted as soon as the plenary meetings had been resumed: on the proposal of a large group of communist and Afro-Asian countries and against the opposition of a number of Western countries, it was resolved that to decide a question of invitation a simple majority of the representatives present and voting would suffice. Three questions relating to invitations were before the Conference: admission of Guinea Bissau (as a State), of the Provisional Revolutionary Government of South Vietnam (which had requested admission “as a Government”) and of national liberation movements. After a Soviet attempt to have these issues considered as one inseparable whole had failed, the admission of Guinea Bissau was quickly resolved with the adoption of a “consensus resolution”(i.e., without vote). The debate on the P.R.G. was more difficult. After all, this entity had found recognition as the legitimate Government of South Vietnam on the part of a great number of (mainly communist) States, and it had, prior to the opening of 41 42 43 44 45

Doc. CDDH/15. CDDH/13/Rev.2. CDDH/21. Third plenary meeting, 27 Feb. 1974; the voting was 64 to 28, with 14 abstentions. CDDH/12; fourth plenary meeting, 28 Feb. 1974.

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the Conference, sent to the Swiss Federal Council, as depositary of the Geneva Conventions of 1949, a letter communicating its formal accession to those instruments (which led to the argument that the Swiss Government should have invited the P.R.G. as of right). In the course of the debate, it became apparent that the communist countries were as strongly in favour of the admission of the P.R.G. as the United States and other Western States were against it, whereas in the African world there was decidedly less interest in this matter than in the previous one (the admission of Guinea Bissau). A roll-call vote finally decided the issue: with a narrow majority and many abstentions the draft resolution on admission of the P.R.G. was rejected (37 for, 38 against, 33 abstentions). A curious note was that North Vietnam did not take part in the vote: on the previous day, the delegation of that country had left the Conference as it could not accept that South Vietnam was represented by the “Saigon clique”. Even with the added vote of North Vietnam, however, the outcome would have been the same, in view of the previously adopted rule requiring a simple majority for any decision relating to invitations. There remained the question of admission of liberation movements. In a sense, this did not constitute a very difficult problem since the feeling was widespread that such movements ought to participate, one way or another, in this Conference on humanitarian law in particular. The only problem lay in the modalities of their participation. Here, the standpoints ranged from inclusion in the delegations of the regional organizations which recognized them, to admission in their own right and with full powers. It soon became apparent, however, that even among the most fervent proponents of admission, the African States, only a very few wanted voting rights for liberation movements at this stage. This led to the possibility of a compromise formula, which was accepted as a consensus resolution by the plenary meeting and which ultimately found a place in the Rules of Procedure. In wonderfully ambiguous language, the Rule in question grants full participation in the deliberations of the Conference and its main Committees to “National Liberation Movements recognized by the regional intergovernmental organizations concerned and invited by the Conference”, while at the same time withholding voting rights by laying down that “only delegations representing States will be entitled to vote.” As meanwhile the “regional intergovernmental organizations concerned” (i.e., the Organization of African Unity and the Arab League) had made up their

46 47 48 49

Letter dated 31 Oct. 1973, received by the Swiss Federal Council on 3 Dec. 1973 and notified to the other Parties to the Conventions by a note dated 18 Jan. 1974. CDDH/14; fifth plenary meeting, 28 Feb. 1974. CDDH/22; seventh plenary meeting, 1 March 1974. CDDH/2/Rev.l: Rules of Procedure; Chapter X, Rule 58: National liberation movements.

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minds about which movements to recognize, the representatives of the fourteen movements so recognized could hereupon take their seats. Two features of the procedural debate preceding the actual work on the Draft Protocols remain to be mentioned. First, it is worth putting on record that, in order to obtain an adequate geographical and political distribution of functions, it proved necessary to appoint nineteen Vice-Presidents. Among them was, curiously, the representative of Guinea Bissau; also the representative of Chile, this notwithstanding the vehement protests of the Soviet Union and some others. The other aspect concerned the question of conventional weapons. While the Swiss Federal Council had foreseen three main Committees (I: general provisions; II: the wounded, sick and shipwrecked; III: protection of the civilian population, means and methods of combat), no provision had been made for a Committee on weapons. At the instigation of Sweden and a number of other countries, the Conference decided to set up an Ad Hoc Committee for that purpose. The task of the Ad Hoc Committee was to “examine the question of prohibition or restriction of use of specific categories of conventional weapons which may cause unnecessary suffering or have indiscriminate effects, and to consider all proposals which are submitted to the Conference relating to such weapons.” The Committee would report to the Conference, and this report would be “transmitted to the ICRC with a view to assisting it in identifying questions and possibilities which need to be explored in depth by the Conference of Government Experts which it will convene in 1974 and in assisting it in finding the most suitable mandate and mode of organization of that Conference.” Not all delegations were unqualified supporters of the establishment of this Ad Hoc Committee. The main objection was that work on possible prohibitions or restrictions on the use of conventional weapons had not yet reached the same stage of maturity as the subject-matter dealt with in the Draft Protocols, and consideration of these Draft Protocols should not be hampered by too much attention being given to the weapons issue. In order to meet this objection, the Ad Hoc Committee was given a status slightly different from that of the three Main Committees, in that its Rapporteur was not included among the ex officio 50

51 52

The list was as follows: the Palestine Liberation Organization (PLO), the Mozambique Liberation Front (FRELIMO), the Angolan People’s Liberation Movement (MPLA), the Angolan National Liberation Front (FNLA), the African National Congress (ANC), the Pan-Africanist Congress (PAC), the Zimbabwe African National Union (ZANU), the South-West African People’s Organization (SWAPO), the Somali Coast Liberation Front (FLCS), the Djibouti Liberation Movement (MLD), the Seychelles People’s Unity Party (SPUP), the Sao Tome and Principe Liberation Movement (MLSTP) and the Comoro National Liberation Movement (MOLINACO). Seventh plenary meeting, 1 March 1974. CDDH/23; ninth plenary meeting, 4 March 1974.

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members of the Drafting Committee. Notwithstanding this gesture, the resolution on the establishment of the Committee failed to find consensus; when put to the vote, it was adopted by 68 votes to none with 10 abstentions. After all these preliminary questions had been settled, the Conference at long last started on its real work with a general debate, which dragged on until 11 March 1974. Then, in the fourth week of the Conference, it finally split up into its Committees for the detailed examination of the Draft Protocols. Needless to say, precious little time remained for that purpose. Nevertheless some interesting decisions could still be arrived at, first of all on the question of the status of wars of national liberation. This question immediately confronted Committee I as it began the discussion of Article 1 of Draft Protocol I, bearing on the scope of the Protocol. As it had already transpired from the general debate, many delegations supported the idea that wars of national liberation belong to the category of international armed conflicts. Amendments to this effect were introduced at an early stage. Initially, there were essentially two varieties; one proposed to provide in a new paragraph that “armed conflicts where peoples fight against colonial and alien domination and against racist regimes” fall under the international armed conflicts referred to in Article 2 of the 1949 Geneva Conventions; according to the other, the situations to be brought under the scope of Article 2 would include “armed struggles waged by people in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and defined by the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.” The difference was mainly one of approach: whereas under the first version certain named situations would be included among the international armed conflicts, the second provided an abstract definition which, in the eyes of its authors, would lead to exactly the same situations being deemed international armed conflicts as the proponents of the more specific formula had in mind but which, on the other hand, could be used to cover other situations as well. Against this massive attack, a small group of mainly Western States placed another proposal the purport of which was to leave Article 2 of the Geneva Conventions and, with that, the scope of Draft Protocol I unchanged but to add a paragraph which would reaffirm the famous Martens clause in the preamble 53 54 55 56 57

The present author acted as Rapporteur of this Ad Hoc Committee. Ninth plenary meeting, 4 March 1974. Tenth to nineteenth plenary meetings. CDDH/I/5, originally proposed by Algeria, Czechoslovakia, the German Democratic Republic, Hungary, Poland, the Soviet Union and Tanzania. CDDH/I/11, originally proposed by Algeria, Australia, Cameroon, Egypt, Ivory Coast, Kuwait, Libya, Nigeria, Norway, Pakistan, Sudan, Syria, Democratic Yemen, Yugoslavia and Zaire.

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to the Hague Regulations of 1899/1907, by stating that “in cases not included in this present Protocol or in other instruments of conventional law, civilians and combatants remain under the protection and the authority of the principles of international law, as they result from established custom, from the principles of humanity and the dictates of public conscience.” The idea behind this proposal was that what really counted was to achieve protection also for the victims of wars of national liberation, and that this could most effectively be achieved by the reiteration of the Martens clause in Draft Protocol I, combined with the best attainable guarantees in Draft Protocol II. Not surprisingly, the proponents of the idea of bringing wars of national liberation under the scope of Article 2 of the 1949 Conventions were not at all impressed by this Western proposal. In fact, they did not even regard it as an alternative to their ideas but rather as a useful addition. They therefore merged the various amendments into a formula which ultimately, after prolonged negotiations in particular between the sponsors of the two types of amendments mentioned above, read as follows: 1.

2.

3. 4.

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The present Protocol, which supplements the Geneva Conventions of 12 August 1949 for the Protection of War Victims, shall apply in the situations referred to in article 2 common to these Conventions. The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. The High Contracting Parties undertake to respect and to ensure respect for the present Protocol in all circumstances. In cases not included in the present Protocol or in other instruments of treaty law, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.

CDDH/I/12; Argentina, Austria, Belgium, Federal Republic of Germany, Italy, the Netherlands, Pakistan, United Kingdom. The amendment also contained a (first) paragraph repeating Art. 1 of the Geneva Conventions, whereby the Parties to the Protocol would “undertake to respect and to ensure respect” for it in all circumstances. CDDH/48 (Report of Committee I), para 14.

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This text, when put to the vote in Committee I, mustered an overwhelming majority: it was approved by 70 votes to 21, with 13 abstentions. Thus, the idea that a renewed Martens clause, or an addition to Article 42 on prisoners of war, could be an acceptable solution for the problem posed by present-day wars of national liberation had been effectively killed. It remained to be seen what the Conference would do with this crucially important Committee decision – and what influence it would have on the rest of the Draft Protocols. It was realized in many quarters that a formal adoption of the new text for Article 1 by the Conference in plenary meeting would be premature, in view of the little work done on other Articles of the Draft Protocol. There was, moreover, a serious risk that such a formal decision of the Conference would lead to the departure of important States such as the United States and other Western Powers. In feverish, often fascinating negotiations between the two sides it proved finally feasible to find a formula which gave the greatest possible weight to the decision taken in Committee I without the Conference actually endorsing it: in the report of Committee I a clause was inserted whereby the Committee “recommended” the new text of Article 1 “for adoption by the Conference”, and in a resolution subsequently adopted without vote in plenary session, the Conference “adopting the report of Committee I, containing its recommendation … welcomes the adoption of article 1 of Draft Protocol I by Committee I.” While this language avoided irreparable damage being done to the Conference, there was always the question of the effects of the decision on the remaining Articles of the Draft Protocols. An attempt was made, mainly by the representative of Canada (who was one of the key figures in these negotiations), to get the Conference to set up an “inter-sessional working group”, to be charged with the task of considering these effects. Although there was much merit in this suggestion, the majority feared that the group would unavoidably become entangled in attempts to undo the decision taken by Committee I and consequently refused to go along with the suggestion. It will therefore remain for the second session of the Diplomatic Conference to consider this question of the effects of the decision taken with respect to Article 1, on the rest of the Draft Protocols. How should one evaluate this decision taken by Committee I and “welcomed” by the Conference? First, contrary to what I suggested with regard to the adoption of GA Res. 3103(XXVII) containing “Basic principles of the legal status of the combatants struggling against colonial and alien domination and racist regimes”, and despite the fact that essentially the same bloc of States was behind the decision of Committee I as had been responsible for the GA resolution, it would be wrong simply to dismiss it as yet another instance of abuse of block voting power. The matter was thoroughly discussed, weighty arguments were advanced from either side and there was ample opportunity for negotiation. True, the exchange of arguments did not result in a consensus being achieved 60

CDDH/53.

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among the delegations participating in the debate, but it certainly served the purpose of clarification and a better understanding of each other’s views. I for one am convinced, moreover, that at least a number of those who spoke in support of the proposition that wars of national liberation are international armed conflicts, did so out of a genuine conviction that this was the legal construction most closely conforming to contemporary international law. (Others, of course, had only political motives.) Yet, I find it hard to accept the decision as the right one. Notwithstanding all the arguments advanced in support of it (that the peoples struggling against colonial domination etc. have a separate status under international law, that their struggle really amounts to an act of self-defence against aggression, and so on) it remains that one is confronted here with armed conflicts taking place within the territory of a single State; armed conflicts, moreover, which vary widely in scope and intensity. Actually, from the point of view of humanitarian law there would be more reason to assimilate fully-fledged civil war to international armed conflicts than the category of wars of national liberation. Yet, none of the protagonists of the decision at issue suggested that civil wars should also be brought within the scope of Article 2 common to the Geneva Conventions. It is this element of arbitrariness in selecting one particular, politically determined, category of non-interstate armed conflicts which to my mind is most in conflict with proven principles of legislation. My judgment would be different if the new rule were to apply solely to those instances of wars of national liberation where the level of organization on the side of the liberation fighters, the intensity and character of hostilities and so on would have assumed proportions where a comparison with international armed conflicts could reasonably be made and application of the rules, laid down for those conflicts could therefore reasonably be expected. And indeed, one of the supporters of the new rule in a private conversation with the present author conceded that he really saw only one single instance where it could have found application, that is, the Algerian war. This may be going to the other extreme, but a grave objection to the text as adopted by Committee I, besides the question of arbitrariness in selection, lies in that it fails to provide any indication of the level at which a “struggle” assumes the character of an armed conflict. Put another way, the risk is that the formula accepted by Committee I will find application in situations where the suggestion that international humanitarian law should apply in toto really is utter nonsense. For these reasons, one would hope that a reconsideration of the text of Article 1 as adopted by Committee I would still be possible. But it should be immediately added that this seems a remote chance, in view of the attitude of the victorious bloc who appear to consider the outcome of the vote as a virtual res judicata. In the other main Committees, no such crucially important decisions were brought about. As, moreover, the work on the draft Articles allotted to the various Committees has only just begun, it may suffice to make brief mention of

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a tendency which once again became apparent, especially in the deliberations in Committee III bearing on the protection of the civilian population, to “go humanitarian” in an extreme way and to plead for rules the effect of which would be to render the civilian population immune from the dangers of war. Needless to say, this would never be anything but immunity on paper, a legal immunity which would not provide any real protection against the bombs and the handgrenades which the civilian population has increasingly learned to expect in any armed conflict. Instead of improving its situation, such rules would by their disregard lead to the virtual absence of any effective legal protection for the civilian population. The proposed articles relative to the special protection of journalists engaged in dangerous missions transmitted by the General Assembly to the Diplomatic Conference received scant attention. Committee I, to which this item had been allotted, was not prepared to give it priority over the other matters on its agenda and decided to postpone it to the next session of the Diplomatic Conference. The Ad Hoc Committee on weapons, finally, did useful work in that it accomplished a tour d’horizon of the entire field before it. Indeed, the scope of the discussions was even wider than those who urged its establishment had had in mind: among the subjects discussed in the general debate were, besides conventional weapons, also nuclear weapons, disarmament, air superiority in armed conflicts involving unequal forces, and so on. As for conventional weapons proper, the various statements provided a clear indication of a willingness to go ahead with the debate, first of all in the conference of government experts which the ICRC intended to convene sometime in 1974. An attempt was made in some quarters to induce the Committee to adopt without hesitation rules prohibiting the use of incendiary weapons, but this attempt failed as the Committee had no mandate to go such lengths. Yet, there can be little doubt that incendiary weapons will be among the first whose use will be curtailed by legal regulation. Summing up, it may be stated that the first session of the Diplomatic Conference on humanitarian law, although far from a great success as a legislative effort, was not a complete failure either. It succeeded in overcoming some critical political difficulties and it made a useful start on the work on the Draft Protocols. Once that start had been made a degree of enthusiasm for the work at hand became apparent, which provides courage and at least a modicum of optimism for the next session of the Conference, planned for February-April 1975.

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CDDH/50 (Report of Committee III), in particular para. 49. CDDH/47 (Report of Ad Hoc Committee on Conventional Weapons).

Chapter 6 Applicability of Customary International Law in Non-international Armed Conflicts*

1

Introductory Remarks

Since some years now we are engaged in an exercise usually referred to as the “reaffirmation and development of international humanitarian law applicable in armed conflicts”, an exercise which thus far has led to the publication by the ICRC of two draft Protocols additional to the Geneva Conventions of 1949: one for international armed conflicts and the other destined to govern non-international armed conflict. While both draft Protocols give rise to many interesting questions, those raised by the last-mentioned Protocol are perhaps the more vexing ones. Questions asked are: what will be the relationship between this Protocol and Article 3 common to the Conventions; what boundary line will separate international armed conflicts from non-international ones; and what will constitute the lower boundary where non-international armed conflicts are distinguished from situations of political tension, riots and the like? These questions, no matter how interesting, shall not be discussed here. Instead, an even more perplexing problem will be dealt with, viz., to what extent the contents of draft Protocol II can be said to constitute a “reaffirmation” of existing humanitarian law and to what extent they should be regarded as a development of that law. In the terms of Article 13(1)(a), of the United Nations Charter: how much is codification of the law and how much progressive development?

* 1 2

Published earlier in A. Cassese (ed.), Current Problems of International Law (1975). pp. 276-285. For the history of this movement, see the articles by this author in the Netherlands Yearbook of International Law, vols. II (1971) p. 68 and III (1972) p. 18. In the course of the first session of the Diplomatic Conference on humanitarian law (Geneva, Feb.-March 1974) Commission I decided by a large majority to count wars of national liberation among the international armed conflicts.

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2 The Thesis Stated: The ICRC Draft Protocol Additional to Art. 3 of the 1949 Geneva Conventions Partly Codifies and Partly Progressively Develops International Humanitarian Law It is usually agreed that the distinction between these two notions more often than not is extremely difficult if not impossible to make and that, in fact, in any drafting exercise codification and progressive development will be found to be indissolubly intermingled. Yet, it can be of the utmost importance to know whether a given treaty provision amounts to the codification of a pre-existing rule of customary law or, rather, constitutes new law. While this is true in general, it is all the more so in a situation such as the present one, where the Protocols are still in the drafting stage and the eventual acceptance especially of the second Protocol is still very much an open question. In these circumstances, it would be extremely helpful if provisions contained in draft Protocol II could be said to have the status of rules of customary international humanitarian law and therefore already now to be binding on parties to non-international armed conflicts. At first glance, the chances of such a finding may seem remote. Does not the case of the non-international armed conflict, a traumatic experience in the life of any nation, entail the most drastic claims of state sovereignty and the most vehement rejections of all outside intervention on behalf of the insurgent party? Surely, anyone who ventures to suggest that a state involved in, or rather living through, such a situation of internal conflict “threatening the life of the nation” already now is restricted in its freedom of action by existing rules of customary international humanitarian law, must dispose of an unusually great dose of courage. Yet, this is precisely the point we hope to make: not, to be sure, that the contents of draft Protocol II in their entirety belong to the body of customary international law but, rather, that some of the more basic precepts contained in that document do in fact possess that status. My thesis is, in other words, that draft Protocol II contains a mixture of “reaffirmation” and “development” and that therefore, even if it would ultimately fail to be adopted, parties to non-international armed conflicts are and remain bound to respect the basic precepts in question. 3

Difficulties in Demonstrating the Thesis

Having put forward this thesis, the logical next step is for me to demonstrate its tenability. Here, however, we meet a first tremendous difficulty. It is con3 4

This was a crucial question, e.g., in the Continental Shelf Cases, ICJ Reports (1969), p. 4. European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 15.

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nected with the traditional view of international customary law as the body of law grown, and still growing, among States out of their international practice combined with a sense of right or obligation. This traditional view, which may probably be considered sufficient to cope with the problems arising out of interstate relations in the classical sense of relations of coexistence, does not bring us very far in the particular field we are discussing here, for two reasons: the modern law of armed conflict does not to any appreciable extent constitute “court law”, and States cannot in any meaningful sense of the term be regarded as the real actors of this body of law. In earlier times, when the waging of war still was an honourable profession virtually reserved to the knights, the law of arms which governed their conduct developed largely through the process of judicial decision. Similarly, admiralty courts were instrumental in clarifying and developing prize law as perhaps the most important part of the law of sea warfare, a function these courts continued to perform well into the present century. In sharp contrast to this picture, States presently show very little inclination to see their wartime behaviour submitted to the test of judicial assessment. One manifestation of this negative attitude is the tendency to exclude disputes arising out of armed conflicts from the acceptance of the compulsory jurisdiction of the International Court of Justice in accordance with Article 36(2) of its Statute. This acceptance is in itself a rare occurrence, and its effect may moreover be considerably weakened by reservations attached to the instruments of acceptance. The reservation mentioned a moment ago is a case in point, excluding as it does an important category of disputes from the jurisdiction of the Court. Another manifestation of the tendency to avoid judicial appraisal of wartime events may be seen, paradoxically, in the very trials staged after the Second World War at Nuremberg and Tokyo. Not only were the vanquished the only ones who were brought to trial before these international tribunals, but a question crucial to the law of The Hague, viz., aerial bombardment of the civilian population, was not imputed to them, presumably because this could not have failed to implicate the victors as well. It is a curious reflection that the only forum which had to pronounce on a particular aspect of this issue, viz., the legality or otherwise of

5 6 7 8 9

On the subject of customary law, see generally A.A. D’Amato, The Concept of Custom in International Law (1971). M.H. Keen, The Laws of War in the Late Middle Ages (1965). J.H.W. Verzijl, Le droit des prises de la Grande Guerre (1924). F. Kalshoven, Belligerent Reprisals (1971), p. 369. Similarly, the Nuremberg Tribunal refused to convict Dönitz for unrestricted submarine warfare, because the Allied had resorted to the same practice; ibid., p. 364.

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the nuclear attacks on Hiroshima and Nagasaki, was a Japanese municipal court which in 1963 arrived at the conclusion that these had been unlawful. The second point I mentioned was that States can hardly be regarded as the real actors of the law of armed conflicts. Of course, international law normally is conceived as the law governing relations among States, and there is no denying that the law of armed conflict, as part of international law, partly fulfils that very function. Treaties concerning this body of law are concluded between States, and States are to a certain extent the focus points of responsibility for its implementation and, in a negative sense, for its violations. However, it is an obvious fact that its real implementation depends on those thousands or even millions of people who are involved in the armed conflict, whether as members of the armed forces, as irregular fighters, or as civilians. Indeed, in a certain measure it is their acts which create the law, since their consistent patterns of conduct may lead to the formation of new customary law. Their individual penal responsibility for violations, moreover, although far from constituting an ideally effective sanction behind the law of armed conflict, at all events is a far more important means of enforcement than the primarily financial responsibility of the State, which indeed at best amounts to little more than a theoretical possibility. Phrasing this point in slightly different terms, one could refer to the widely recognized need for the broadest possible dissemination of the law of armed conflict among the population of all States. This amounts to recognition that it is they who are the real actors in armed conflicts, and that the issue at stake is their standard of behaviour rather than that of the fictitious entity called “State”. Viewed from this angle, the law of armed conflict may be understood in its real significance as a code of human behaviour for all those individuals involved, one way or another, in an armed conflict, or, with a term of Schwarzenberger, as a standard of civilization. In this sense too, it seems perfectly apposite to refer to the customary law of armed conflict. It seems to me that the judgment of the Nuremberg Tribunal has to be understood in this sense when it states that by the time of the Second World War the Hague Regulations of 1899, revised in 1907, had come to be recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war.

10 11 12 13

The Shimoda Case, Tokyo, December 1963; see, e.g., L. Friedman, The Law of War, a Documentary History (1972) p. 1688. F. Kalshoven, The Law of Warfare (1973) p. 109. G. Schwarzenberger, International Law as Applied by International Courts and Tribunals, Vol. II: The Law of Armed Conflict (1968), pp. 10 et seq., 109 et seq. Friedman, op. cit., pp. 922, 961.

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4 The Thesis Demonstrated Turning back now to our original question: whether and to what extent customary international law can be said to be applicable in non-international armed conflicts, a first and obvious remark is that it would be very strange indeed if completely different codes of conduct, or standards of civilization, would apply according as the conflict should be classified as international or non-international. This all the more so in view of the increasing difficulty to determine whether particular armed conflicts belong in one or the other category. There are, of course, clear cases, such as the Second World War which undoubtedly constituted an international armed conflict, or the recent events in Chile which equally doubtless amounted to an internal one. Already here, however, a word of caution is in order: there are those who hold that a conflict involving fundamental human rights issues by that very token can no longer be regarded as an internal conflict. While this, to my mind, is an erroneous conclusion as far as the law of armed conflict is concerned, it surely demonstrates in the clearest possible way the difficulty mentioned a moment ago. My suggestion is not that there would be no difference whatsoever between the two categories of armed conflicts. We are all aware that especially in the sphere of the law of Geneva, different conventional regimes have been brought about, with a detailed and indeed highly intricate set of rules for international armed conflicts and a single brief Article devoted to “armed conflicts not of an international character” (Art. 3 common to the four Geneva Conventions of 1949). I do suggest, however, that notwithstanding this sharp difference in legal regimes as they appear from the written instruments, it would be astonishing indeed to find that the underlying customary codes of conduct applicable in the two situations really have nothing in common. After all, although the two forms of armed conflict may differ in some important respects, they certainly hold in common other basic features which are inherent in the very idea of armed conflict. Besides this general and necessarily vague idea “that the codes of conduct for the two types of armed conflict should have certain elements in common”, there are other indications which to my mind reinforce this idea and hence tend to support my thesis that certain rules and principles of customary law are applicable in non-international armed conflicts. First, there is the Lieber Code. The “Instructions for the Government of Armies of the United States in the Field”, as the document is formally named, were written by Lieber at the request of the President of the United States to be applied by the Northern forces in the American Civil War, an internal armed conflict in the strict sense of the term. Its contents Lieber derived from his knowledge of the law of war (as it was 14 15

Kalshoven, The Law of Warfare, op. cit., p. 13. D. Schindler & J. Toman, The Laws of Armed Conflicts (1973), p. 3; Friedman, op. cit., p. 158.

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then styled), a law which had developed as customary law in the course of many, mainly European, interstate armed conflicts. True, the American Civil War was also characterized by the practices of a man like General Sherman, who started from the principle that “[t]he only possible way to end this unhappy and dreadful conflict … is to make it terrible beyond endurance.” This is the idea of total war, an idea, for the rest, which by no means is connected with internal armed conflicts alone but which equally often is proposed (and sometimes brought into practice) by generals in the course of international armed conflicts. As Lieber had not hesitated to use the existing customary law of armed conflict, notwithstanding its origin, for the American Civil War, so, conversely, there was no hesitation among the delegates to the Brussels Conference of 1874 and, later, to the Hague Peace Conferences of 1899 and 1907, to use the Lieber Code as a basis for the codification of the law of armed conflict in what ultimately would become the Hague Regulations on Land Warfare of 1809-1907. This in spite of the fact that these Regulations, an annex to the Hague Convention of the same name, by virtue of the express text of that Convention were destined to be applied solely in case of war between two or more contracting Powers, that is: States. The travaux of the first Hague Peace Conference provide another argument in favour of my thesis. Among the matters discussed was the question whether the use of so-called dum-dum bullets should not be prohibited, a question which eventually found an affirmative answer in the Declaration concerning Expanding Bullets adopted by the Conference and in which the contracting Parties agreed “to abstain from the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions.” Like the Hague Regulations, the Declaration is only binding in the case of a war between two or more contracting Powers. Yet, in the discussions preceding its adoption the main objection came from the British representative, General Sir John Ardagh, who argued that in recent military campaigns in the British Indies dum-dum bullets had been found to constitute an indispensable means for the British Army effectively to stop the attack of a deter-

16

17

18 19

As quoted in B.V.A. Röling, De positie van de niet-bezette burgerbevolking in een gewapend conflict, in het bijzonder met het oog op de massaal werkende strijdmiddelen (NBC-wapens) (“The position of the unoccupied civilian population in an armed conflict, in particular with regard to weapons of mass destruction (NBC-weapons)”) (1970) p. 59. J. De Breucker, “La Déclaration de Bruxelles de 1874 concernant les lois et coutumes de la guerre”, in 27 Chronique de politique étrangère (1974) pp. 3-87; Kalshoven, Belligerent Reprisals, op. cit., p. 46. Art. 2; the text of this Article is not identical in the 1899 and 1907 Conventions, but for our purposes the differences are immaterial. Schindler & Toman, op. cit., p. 103; Friedman, op . cit., p. 247.

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mined indigenous enemy. Clearly, this representative never doubted that experiences gained in internal military actions in the Indies were relevant to the debate on prohibition of use of certain bullets in international armed conflicts. It is perhaps permissible to include in this list of arguments favouring my position the discussions relative to the Geneva Gas Protocol of 1925. This Protocol prohibits, inter alia, “the use in war of asphyxiating, poisonous or other gases”, and from the outset one of the main problems arising out of this text has been whether it includes teargas and other so-called “riot control agents”. For most countries, it does; but the United States has always maintained grave objections against this interpretation. Its underlying concern – and one of the reasons why it finally did not ratify the Protocol – was that the text when given this broad meaning would not only exclude the use of such substances in war, against an enemy, but also, by implication, would throw doubt on the legality of their use by the police as riot control agents. At another occasion, in the course of the second phase of the League of Nations Disarmament Conference (1930-1933) the United States delegate expressed his government’s willingness “to forego the use of lachrymatory substances for military purposes in wartime as this might give rise to abuse” but at the same time “strongly urged that the use of lachrymatory gases for police purposes and for protecting private property should be permitted.” The distinction made here by the United States is between use in war and use for police purposes, not between use in international or internal armed conflicts. One could add that the Protocol itself refers only to “war” and not to “war between contracting Parties”. It would, however, be less than fair to conclude that the Protocol is – or the United States believed the Protocol to be – applicable in internal as in international armed conflicts. On the other hand, it seems admissible to point to the necessary connection the United States has always emphasized between the prohibition contained in the Protocol and the use made domestically of teargas and similar substances. How little justified the above conclusion would be, may be demonstrated with two quotations. In 1949, in. the course of the deliberations in the Diplomatic Conference on what was to become common Article 3, the US representative Yingling proposed that in case of non-international armed conflict “all combatants should be entitled to the protection as stated by the humanitarian principles of the Convention.” In support of this proposal, he gave the following example: “The use of poison or gas for instance was prohibited by international law; but 20 21 22 23

Conférence internationale de la paix, La Haye 18 mai - 29 juillet 1899, 2me partie, pp. 4-5, 50. Schindler & Toman, op. cit., 109; Friedman, op. cit., p. 454. SIPRI, The Problem of Chemical and Biological Warfare, Vol. III: CBW and the Law of War (1973) p. 53. Ibid., Vol. IV: CB Disarmament Negotiations, 1929-1970 (1971), p. 153.

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international law only applied to wars between States, and the prohibition should be extended to cover civil wars also.” Again, UNGA Resolution 2603A (XXIV), adopted on 16 December 1969 is expressly restricted to the use of chemical and biological means of warfare in international armed conflicts. Yet this cannot decide the question whether the existing customary prohibition of chemical warfare has, perhaps, a wider scope of application than is attributed to the conventional instruments in the above quotations. To this question I shall revert below. The point I wanted to make at this stage was a modest one, to wit, that the debate on the correct interpretation of the Gas Protocol shows a certain natural tendency to think of internal situations when discussing a prohibition on wartime use of a means of warfare that need not in its application be limited to international armed conflicts. The discussions on non-international armed conflicts in the Geneva Diplomatic Conference of 1949 provide the next step in my argument. While the various formulas discussed for the regulation of such conflicts differ widely, ranging from the overly optimistic proposition that the parties to an internal armed conflict would have to apply the Conventions in toto to the unduly restrictive enumeration of principles which was ultimately adopted, it was never a matter of doubt that some sort of provision ought to be made for the situation of noninternational armed conflict. The difficulties were of course enormous, for when the attempt is made to provide conventionally for a situation which, as noted, cuts deep into the heart of what States traditionally regard as their domestic jurisdiction and in which moreover one of the parties to the conflict cannot be a party to the convention, it is only to be expected that unwilling States will bring into play all the arguments and objections which the traditional law of treaties can provide. In this light, the final adoption of common Article 3 is a most remarkable event. To my mind, it demonstrates the realization on the part of the delegates that there exists a standard of civilization applicable in non-international armed conflicts as well, and that it would be ludicrous not to give this basic fact any recognition in the Geneva Conventions. Express recognition that there is a common code of conduct came finally in the course of the endeavours to achieve better protection for the civilian population against the dangers of war. While the original version of the Draft Rules for the Protection of the Civilian Population from the Dangers of Indiscriminate Warfare, published by the International Committee of the Red Cross in 1955, 24 25 26

Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II, Section B, p. 99. Schindler & Toman, op. cit., p. 126. G.I.A.D. Draper, “The Geneva Conventions of 1949”, in 114 Recueil des Cours (1965), p. 82 et seq., in particular p. 99; for the drafting history of Art. 3, see too the Commentary to the Geneva Conventions of 1949 published under the general editorship of Jean S. Pictet, Vol. I (1952), p. 38.

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was silent on the question of their application to internal armed conflicts and, indeed, owing to express references to the “enemy” and to the system of supervision by Protecting Powers could hardly be deemed suitable to be applied in such conflicts, the second version published in 1956 under the title “Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War” stated in so many words that the rules would apply, inter alia, “in the event of an armed conflict not of an international character.” In its commentary, the International Committee of the Red Cross explained that certain modifications had been brought to the 1955 text and that, hence, there appeared to be no reason why the general rules proposed in the draft text should not be applied in noninternational armed conflicts. While the ICRC in these Draft Rules and in the attached commentary carefully avoided to mention whether in its view application of the rules in noninternational armed conflicts would constitute a novelty or be a matter of customary international law, the XXth International Conference of the Red Cross held in Vienna in 1965 did not hesitate, in Resolution XXVIII on the Protection of Civilian Populations against the Dangers of Indiscriminate Warfare, solemnly to declare “that all Governments and other authorities responsible for action in armed conflicts should conform at least” to a number of basic principles enumerated in the text. This language had been expressly chosen to make it clear that “armed conflicts” included the non-international ones. It is generally agreed that the principles enumerated in the Resolution belong to customary international law. The International Conference on Human Rights (Teheran, 1968) in Resolution XXIII urged the Secretary-General of the United Nations to study “steps … to secure the better application of existing humanitarian international conventions and rules in all armed conflicts” as well as the need for completion or revision of humanitarian law “to ensure the better protection of civilians, prisoners and combatants in all armed conflicts.” Hereupon, the General Assembly in December 1968 unanimously adopted the by now famous Resolution 2444 (XXIII) which endorses both the principles mentioned in the Vienna Resolution (minus one, which was concerned with the application of existing law of armed conflict to nuclear warfare) and the ideas expressed in the Teheran Resolution. In both cases, the reference to “all armed conflicts” was maintained, it being understood that this term includes the non-international variety. Even clearer is the language used two years later by the General Assembly in Resolution 2675 27 28 29 30 31

Art. 2(b); Schindler & Toman, op. cit., p. 180. The ICRC in 1958 published a second edition of the Draft Rules; in this publication, the 1955 version is reprinted at p. 139. Draft Rules, 2nd ed. (1958), p. 41. Schindler & Toman, op. cit., p. 187. Ibid., p. 190. Ibid., p. 191; Friedman, op. cit., p. 699.

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(XXV): this simply affirms the “basic principles for the protection of civilian population in armed conflicts.” The venerable Institut de droit international had meanwhile, at its Edinburgh session of 1969, chosen for the same position. In its Resolution on the “distinction between military objectives and non-military objects in general and particularly the problems associated with weapons of mass destruction” it noted that the rules set out in the text “form part of the principles to be observed in armed conflicts by any de jure or de facto government, or by any other authority responsible for the conduct of hostilities.” A clearer expression of the idea that these customary principles were applicable irrespective of the type of armed conflict is hard to conceive. This brings to an end my list of arguments supporting the thesis that certain basic precepts of international humanitarian law of armed conflict apply customarily in non-international armed conflicts as well. Admittedly, the arguments are of unequal force; in particular those derived from the earlier history of the modern law of armed conflict can prove little more than that an awareness of the link between the two types of armed conflict was never wholly absent. But it seems hard to deny that the various discussions held and resolutions adopted in the years since 1949 militate strongly in favour of my proposition that there can be no two completely different standards of civilization, depending on whether the situation amounts to an international or an internal armed conflict. The resolutions adopted by the General Assembly and the Institut de droit international to my mind constitute the most authoritative confirmation of this thesis I could ever wish to obtain. 5 The Thesis Specified: The Basic Precepts of Customary International Law Applicable in Internal Armed Conflicts Considering my thesis proven, not “beyond a reasonable doubt” but as far as at all possible in such a delicate and controversial question, it remains for me to examine briefly which are the basic precepts of international humanitarian law applicable, as a matter of customary law, in non-international armed conflicts. To begin with the law of warfare proper, principles relative to the protection of the civilian population are the first to fall within this category. True, the risks run by non-participants in the course of an internal armed conflict are even greater than in an international one and this irrespective of whether the fighting takes the form of guerrilla warfare or aerial bombardment. This may be so, but the basic principle of distinction between participants in hostilities and the civilian 32 33 34

Schindler & Toman, op. cit., p. 195. Ibid., p. 193. For an explanation of the use of this term, see Kalshoven, The Law of Warfare, op. cit., p. 27.

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population applies here as well, and so do the principles that attacks should be directed solely against military objectives and that in doing so the civilian population should be spared as much as possible. Terror attacks, to take an example, are equally abhorrent to the public conscience whether committed in an internal or in an international armed conflict. On the other hand, a technically precise rule of proportionality (controversial even in the case of international armed conflict) obviously cannot be held applicable in an internal armed conflict. Then, certain principles concerning the use of means and methods of warfare apply: thus, the prohibition to employ means of warfare “calculated to cause unnecessary suffering” (in the language of Article 23(e) of the Hague Regulations) and the prohibition to employ perfidious means or methods of warfare. Here too, the latter prohibition obviously encounters even greater difficulties in non-international than in international armed conflicts. This cannot however detract from the value of the prohibition as a basic precept of conduct. Perfidious use of the Red Cross sign, for instance, is as much a war crime in internal as it is in international armed conflicts. Always in the sphere of the law of warfare, I do not hesitate to include in my catalogue the (few) existing rules prohibiting use of specific weapons, notably poison, the dum-dum bullet and chemical and bacteriological means of warfare. This, of course, is in flat contradiction with the statement of the US representative Yingling that “international law only applies to wars between States”; but this does not trouble me a great deal, because that statement really is a nonsense: it may be true with respect to international treaty law (with the notable exception of Article 3 common to the Geneva Conventions of 1949) but it simply fails to take into account the existence of customary international law. Indeed, I fully agree with the statement in “CBW and the Law of War” that “it is a generally accepted principle that the rules of the international law of war which concern weapons also apply in conflicts not presenting an international character”, a statement which the author of that publication relates “to the fact that these rules are normally regarded as having a humanitarian character and as being imposed by general standards of civilization.” Turning next to the area of the law of Geneva, the basic principles concerning treatment of the wounded and sick and humane treatment of the adversary who has laid down his arms belong to the code of conduct for non-international armed conflicts. Applicability of these principles has, for that matter, found authoritative confirmation in Article 3 of the Geneva Conventions of 1949. This ends my list of basic precepts customarily applicable in non-international armed conflicts. Each of the items on the list could of course be elaborated upon, but it is not here the place to do this. Instead, it seems useful to mention some notions basic to the law of armed conflict which do not apply in internal armed conflicts, at least not as a matter of customary international law. These are: 35

SIPRI, CBW and the Law of War, op. cit., p. 31.

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the principle of non-liability to punishment of captured adversaries for the fact of their participation in hostilities (a principle basic to the prisoners of war regime in the Geneva Convention) and the principles of non-annexation of territory and of non-allegiance of the population in case of occupation. Furthermore, it seems safe to state that all those sophisticated rules of the Conventions which actually presuppose a highly organized governmental apparatus have no place among the principles applicable in non-international armed conflicts as a matter of customary law, nor, indeed, as necessary elements of the standard of civilization. 6 The Impact of the Law of Human Rights on the Law of Armed Conflict In the foregoing I have discussed the question of applicability of certain standards of conduct in non-international armed conflicts solely as a problem of the law of armed conflict. This discussion would however be incomplete without some reference to the impact these standards are bound to undergo from the emerging law of human rights. Admittedly, there are important differences between the law of armed conflict and human rights law, both as regards origin, subject-matter (respectively, relations between enemies and between the citizen and his government) and implementation systems. Yet precisely in regard to the non-international armed conflict the two spheres are in closest contact: both the citizen-government relations and those between adversaries are here indissolubly linked. It may perhaps be objected that in time of armed conflict many of the human rights and fundamental freedoms cease to apply or at any rate may be derogated from by the government. True; but in the international human rights conventions which have been concluded so far, this power of derogation is confined within fairly narrow bounds: it applies only (in the terms of Article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms) “in time of war or other public emergency threatening the life of the nation” and even then a number of most fundamental rights are excepted. The catalogue of non-derogable rights differs slightly in the various conventions, but the differences are not significant. Taking once again the European Convention as an example, it comprises: the right to life (except in respect to deaths resulting from lawful acts of war) and the prohibitions of torture, slavery and servitude, and punishment for acts which constituted no crime at the time they were committed. Other rights, it should be added, may only be derogated from “to the extent strictly required by the exigencies of the situation.” It leaps to the eye that this system of human rights guaranteed even in time of emergency coincides to a large extent with, and in fact reinforces significantly, some of the basic principles of the law of armed conflict. Thus, the right to life 36

H. Meyrowitz, “Le droit de la guerre et les droits de l’homme”, in Revue du Droit Public et de la Science Politique en France et à l’Etranger (1972), p. 1059.

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with the exception attached to it amounts to a prohibition of killings not warranted by the law of armed conflict and, generally, arbitrary deprivations of life; and a prohibition of torture is found in both legal systems. Then, the non-retroactivity of penal legislation certainly constitutes a useful addition to the guarantees provided in Article 3 of the Geneva Conventions of 1949, which does not mention it. Conversely, Article 3 contains a prohibition of condemnation without fair trial, which is not among the non-derogable rights of Article 15 of the European Convention. But then again, this Convention does contain a number of very precise rights protecting suspects of criminal acts and these may only be derogated from, as we saw a moment ago, to the extent strictly required by the exigencies of the situation. Here too, therefore, one finds a mutual reinforcement of the two legal systems. It seems surely a reasonable expectation that the law of armed conflict applicable in non-international armed conflicts and human rights law will continue to influence each other beneficially and thus will contribute to the reaffirmation and development of that standard of civilization which provides at least a modicum of protection for the human being in time of armed conflict – all armed conflicts.

Chapter 7 The Conference of Government Experts on the Use of Certain Conventional Weapons, Lucerne, 24 September - 18 October, 1974*

1

Introduction

In previous volumes of this Yearbook, the present author has put on record a series of events under the common denominator of “reaffirmation and development of international humanitarian law applicable in armed conflict.” The last event so recorded was the first session of the Diplomatic Conference on humanitarian law, held in Geneva at the beginning of 1974 and which commenced discussion of the two Draft Additional Protocols to the Geneva Conventions of 12 August 1949 prepared by the International Committee of the Red Cross (or ICRC). The Conference has meanwhile held its second session, from 3 February to 18 April 1975, and a third session is scheduled to take place from 21 April to 11 June 1976. In view of the considerable amount of work already done at the second session, and assuming that the constructive spirit which prevailed during this session will persist during the next, it may confidently be expected that the 1976 session will suffice, at least, to finish the first reading of the Draft Protocols. This will provide an excellent opportunity to enter into some of the more salient features of the Draft Protocols, in the light of the amendments accepted in the course of the Diplomatic Conference. In the meantime, attention may usefully be paid to another conference which, while taking its place in the series of conferences on “reaffirmation and development of international humanitarian law applicable in armed conflict”, is sufficiently important as well as distinct from the rest of the series to deserve separate treatment: the Conference of Government Experts on the Use of Certain Conventional Weapons, held at Lucerne (Switzerland) from 24 September to 18 October 1974.

* 1 2

Published earlier in 6 NYIL (1975) pp. 77-102. 2 NYIL (1971) p. 68; 3 NYIL (1972) p. 18; 5 NYIL (1974) p. 3. ICRC, Conference of Government Experts on the Use of Certain Conventional Weapons (Lucerne, 24 Sept.-18 Oct. 1974), Report, 1975.

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History

This Conference was convened by the ICRC at the request of the XXIInd International Conference of the Red Cross, held at Teheran in November 1973 (Res. XIV). The ICRC had shouldered this task without any great enthusiasm, because by that time it had become only too well aware of the political implications of the subject and its close connection with considerations of national security. Yet, the ICRC had itself as much as anyone else to blame (if that is the right word in this connection) for the situation in which it found itself: it had been among the first to draw attention to the need for an examination of certain new weapons developments in the light of existing legal criteria. True, its interest in the matter had stemmed not so much from any particular desire to become involved in questions of weapons technology and armaments, but rather from the need to protect civilian populations from the dangers of indiscriminate warfare. In that context, it had broached the questions of chemical, bacteriological and radiological warfare in 1955 and, in 1956, the use of incendiary weapons: more than a decade before the United Nations began to take an interest in the matter. In 1967, the ICRC sent a Memorandum to all Governments on the protection of civilian populations against the dangers of indiscriminate warfare. In a survey of existing law, annexed to the Memorandum, it raised the question whether “such new weapons as napalm and high velocity rockets” should not be included in the category of “weapons inflicting needless suffering.” Having received few reactions to this Memorandum, the ICRC in February 1969 convened a meeting 3 4 5

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Draft Rules for the Protection of the Civilian Population from the Dangers of Indiscriminate Warfare, published by the ICRC in June 1955. Draft Rules, Part II (Rules of application), Section IV (Weapons contrary to the laws of humanity), Art. 10 (Unlawful means of causing harm). While in the 1955 version of the Draft Rules the ICRC, believing that governments would not be prepared to agree to a restriction on the use of incendiary bombs, expressed the view that the general rules in the Draft would at all events prohibit the indiscriminate use of incendiary weapons (Commentary, pp. 87, 88), the second version published in 1956 mentioned incendiary agents in one breath with chemical, bacteriological and radioactive agents (Art. 14). In its Commentary to the second version the ICRC explained that, in view of comments it had received from various experts, it had “thought it desirable to mention incendiary agents in the list of examples in Article 14 and thereby to include in that article those incendiary weapons which, by their nature or in certain circumstances, would constitute devices with uncontrollable effects” (2nd ed. (1958), p. 106). Reprinted as Annex XV to the Report on Reaffirmation and Development of the Laws and Customs Applicable in Armed Conflicts, published by the ICRC in May 1969 and submitted to the XXIst International Conference of the Red Cross (Istanbul, Sept. 1969). Ibid., p. 058.

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of experts to discuss the whole subject-matter of the “reaffirmation and development of the laws and customs applicable in armed conflicts.” In a preliminary document which it put before the meeting by way of a provisional agenda, the ICRC invited the experts’ opinion, inter alia, on the questions of “napalm”, “high speed barbed missiles” (or fléchettes) and “fragmentation bombs”. While the Report on this meeting is silent on the last two types of weapon, it points up a variety of opinions concerning the legality or illegality of the use of napalm and the desirability and feasibility of a prohibition on such use. Perhaps even more important was the advice given by a number of experts, to the effect that the role of the Red Cross in this domain was not to bring about the prohibition of specific weapons but constantly to remind all those concerned of the basic principles governing the admissibility of the use of such specific weapons. Notwithstanding this warning, the ICRC once again brought up the question of the use of certain weapons in the documentation it submitted to the first session of the Conference of Government Experts on humanitarian law, which it convened in May-June 1971. While taking the position that the prohibition of such weapons would fall principally within the ambit of the United Nations, and welcoming therefore the suggestion made by the Secretary-General to assign the study of the effects of napalm to a group of experts, the ICRC devoted separate attention to the use of incendiary weapons and, in the context of guerrilla warfare, it raised the question whether certain weapons such as “fragmentation bombs”, “certain ultra rapid ‘darts’” (or fléchettes), certain new types of rifle ammunition, “mines filled with glass splinters or rusted nails”, and in fact the whole range of weapons classified as “anti-personnel” should not be made the subject of critical examination. Significantly, however, in the document dealing with the “Rules relative to behaviour of combatants” the ICRC confined itself to suggesting the “reaffirmation and development” of the basic principle embodied in Article 23(e) of the Hague Regulations of 1899/1907 respecting the Laws and Customs of War on Land, prohibiting the employment of “arms, projectiles or material calculated to cause unnecessary suffering.”

8

9 10 11 12 13

Doc. D 1055b, p. 12. Meanwhile, the International Conference on Human Rights, held under UN auspices in Teheran in 1968, had adopted Res. XXIII entitled “Human Rights in Armed Conflicts”; in this resolution it was stated that “napalm bombing” was among the methods of warfare which “erode human rights and engender counter-brutality”. Report, cited supra note 6, p. 62. Documentation, Vol. I (Introduction), p. 20; second Report of the Secretary-General on Respect of Human Rights in Armed Conflicts, A/8052, paras. 125, 126. Documentation, Vol. III (Protection of the Civilian Populations against Dangers of Hostilities), p. 115. Documentation, Vol. VI (Rules Applicable in Guerrilla Warfare), p. 48. Documentation, Vol. IV, p. 6.

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At the first (1971) session of the Conference of Government Experts, where a variety of tendencies emerged with regard to the question of weapons, a particularly interesting suggestion had been that it should take up the study of all weapons which were not at the time the subject of discussion in other forums, such as the United Nations or the Conference of the Committee on Disarmament (the CCD). A paper along these lines tentatively suggested the prohibition of the following categories of weapon: “delayed action weapons, the dangerous and perfidious effects of which are likely to be indiscriminate and to cause suffering to the civilian population”, “napalm bombs and other incendiary weapons … for use in circumstances where they may affect the civilian population” and “bombs which for their effect depend upon fragmentation into great numbers of small calibred pieces or the release of great numbers of small calibred pellets.” In formulating these proposals the experts in question had not significantly deviated from the path indicated by the ICRC in its preliminary documentation; a path, incidentally, which had considerably widened since the ICRC had ventured its first tentative suggestions concerning incendiary weapons. It also is apparent that the proposals, although probably prompted by the experiences of the Vietnam war, were all expressly or implicitly concerned with the fate of the civilian population. While it might be surmised that this support from government experts for the suggestions it had itself made would induce the ICRC to elaborate its ideas into more precise propositions, the Basic Texts it submitted to the second session of the Conference of Government Experts (May-June 1972) were completely silent on the matter of prohibition or restriction of on humanitarian law the use of specific weapons, and so was the Commentary which accompanied the Basic Texts. In the Conference, a representative of the ICRC explained the reasons for this silence. First, it really was the task of the United Nations and the CCD to deal with the question of those conventional weapons which had aroused so much concern among public opinion. In this connection, the ICRC “welcomed the fact that the Secretary-General of the United Nations had been requested to prepare a special study on incendiary weapons and napalm.” If, however, no other body would take on the question at issue, the ICRC “would then be prepared to consider how it could contribute to the studies to be carried out.” Second, “the prohibition of specific weapons had always been the subject of legal instruments separate from the Geneva Conventions” and it was preferable that this would remain so, if only because there was a fundamental difference between the two 14 15 16

Report on the work of the Conference, para. 477. Ibid., p. 99; doc. CE/COM III/44, introduced by the experts of Egypt, Mexico, the Netherlands, Sweden and Switzerland. GA Res. 2852(XXVI) of 20 Dec. 1971, following the suggestion made by the SecretaryGeneral in his second report on “Human Rights in Armed Conflicts”, see supra note 10.

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types of rule: “the rules in the Conventions were of an absolute nature, whereas the prohibition of weapons was subject to reprisals or even to reciprocity.” The latter argument was particularly weak. It was by no means certain that the proposals put forward by the ICRC, e.g., concerning the protection of the civilian population against the effects of hostilities (traditionally part of the “law of The Hague”) would eventually assume the character of “rules of an absolute nature”. At one place in its Commentary (dealing with the proposed prohibition on attacks against objects of a civilian character) the ICRC itself stated in so many words that “the problem of reprisals remained open.” And in the part of the Draft Protocol devoted to the “Execution of the Conventions and of the present Protocol” it had included a draft article on the “Prohibition of reprisals and exceptional cases” which in its second section gave a detailed set of conditions reprisals would be required to meet in cases where they would not be prohibited under the law of armed conflict in force. It seems therefore obvious that the real reason for the non-inclusion of proposals on specific weapons among the propositions the ICRC had submitted to the government experts lay in the twofold consideration that the question had better be dealt with, if at all, in a separate instrument and perhaps even in another forum. In other words, the ICRC preferred the discussion of the Draft Protocols not to be complicated with – and hampered by – the additional burden of the weapons issue. Reactions to this posture of the ICRC were, of course, diverse. Some mainly Western experts supported it in its reticence and said that the matter really was one for the CCD, where it “could be dealt with most effectively.” Others regretted the timidity which the ICRC was now displaying and, objecting to the view that prohibitions on the use of specific weapons could be brought about only in disarmament forums (where negotiations, they felt, were based primarily on strategic considerations), claimed that the question of such prohibitions was entirely within the sphere of competence of the Conference convened by the ICRC and which “started out from humanitarian concerns.” These experts, with Dr. Hans Blix of Sweden as their undisputed leader, submitted a proposal which differed in one significant respect from the one made in 1971: this time, the proposed prohibition on incendiary weapons was no longer restricted to “use in circumstances

17 18 19 20 21 22

Report on the work of the Conference, second session, Vol. I, para. 3.14. Commentary, Part One, p. 97: commentary to Art. 47 of Draft Protocol I in its 1972 version. Art. 74 of Draft Protocol I in its 1972 version; see also Commentary, Part One, p. 152. Report, Vol. I, para. 3.21. Ibid., para. 0.32. Ibid., para. 3.20.

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where they may affect the civilian population.” This was an important modification, which for the experts of the Netherlands made it impossible to continue giving their support to the proposal; napalm still belonged to the armament of the Dutch air force, and the proposal in its new form might affect NATO tactics. Taking up the suggestion of the representative of the ICRC that this organization might in certain circumstances “be prepared to consider how it would contribute to the studies to be carried out” and admitting that further study of the questions involved might indeed be necessary, Dr. Blix invited the ICRC to convene, in the near future, a meeting of legal, military and medical experts to examine the problem. When this idea received support from many quarters and was submitted as a formal proposal in the course of the final plenary sessions of the Conference, the ICRC thereupon expressed its readiness to act accordingly. Convened in early 1973, the experts’ meeting had the benefit of the report of the Secretary-General on “Napalm and other incendiary weapons and all aspects of their possible use” which had appeared in the meantime. With respect to this category of weapons the experts therefore confined themselves to providing in their report a condensed version of the Secretary-General’s report. For the rest, they briefly discussed, in the light of the general principles of international law regarding the use of specific weapons, all existing principal categories of weapon: explosive and penetrating weapons, nuclear, biological and chemical weapons,

23 24 25 26

27 28

Report, Vol. II, p. 57; doc. CE/COM III/C33: proposal submitted by the experts of Egypt, Finland, Mexico, Norway, Sweden, Switzerland and Yugoslavia. The experts of the Netherlands submitted an amendment retaining the element of risk to the civilian population; id., doc. CE/COM III/C26. Report, Vol. I, para. 3.20. Report, Vol. II, p. 115; doc. CE/SPF/2, submitted by the experts of Argentina, Austria, Brazil, Denmark, Egypt, Finland, the Federal Republic of Germany, Iraq, Kuwait, Lebanon, Libya, Mexico, the Netherlands, Norway, Spain, Sweden, Switzerland, Syria and Yugoslavia. Report, Vol. I, paras. 5.8-5.11. A/8803, .9 Oct. 1972. The General Assembly in the course of its 27th session adopted two resolutions of relevance here. One (Res. 2932A (XXVII) of 29 Nov. 1972) welcomed the report of the Secretary-General on napalm and other incendiary weapons and deplored the use of these weapons in all armed conflicts. The other (Res. 3032 (XXVII) of 18 Dec. 1972) “noted with concern” the lack of agreement among government experts over the weapons issue and invited the Secretary-General “to prepare as soon as possible, a survey of existing rules of international law concerning the prohibition or restriction of use of specific weapons.” The Secretariat produced this survey on the basis of preparatory work by Professors Richard R. Baxter (U.S.A.) and Igor Blishchenko (U.S.S.R.) and submitted to the General Assembly as document A/9215, Vols. I and II, of 7 Nov. 1973.

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with special attention being paid to small-calibre projectiles, blast and fragmentation weapons, and time-delay weapons (mines and booby-traps). While this ICRC meeting of experts was a useful exercise, it laboured under the same defect as the earlier one on incendiary weapons convened by the Secretary-General had done, viz., insufficiently widespread expert participation. In both instances, there was a marked over-representation of experts from countries which had already expressed their support for the idea of far-reaching prohibitions on the use of conventional weapons; the Secretary-General’s meeting had in fact been boycotted by virtually the whole Western world (Sweden being the only country that had reluctantly agreed to send an expert), and also in the ICRC meeting participation from these countries was at a singularly modest level. As, moreover, the contribution from qualified military experts, especially from the major Powers, had been virtually nil, it was perhaps somewhat hasty that the report concluded that “the facts compiled … speak for themselves” and that there were “good reasons for intergovernmental discussions” concerning the weapons at issue “with a view to possible restrictions upon their operational use or even prohibition.” This language, indeed, had flown from the pen of Dr. Blix, and the ICRC had been very reluctant to accept its insertion in a report which, although technically remaining the responsibility of the experts who had participated in the meeting, could hardly fail to involve the ICRC as well. Cautiously, therefore, it warned in its introduction that the report was “purely documentary in character.” And in an evident attempt to curb the speed at which Dr. Blix and his consorts wanted to proceed, it suggested that “for its part, if the need were felt, [it] would be prepared to continue inquiries and, for example, convene a conference of government experts in order to contribute to the promotion of relevant international humanitarian law.” The offer which the ICRC had thus extended (and which, incidentally, was completely in line with the policy it had adopted since the second, 1972, session of the Conference of Government Experts on humanitarian law) was taken up by the XXIInd International Conference of the Red Cross, held at Teheran in November 1973. After some delicate negotiations between representatives of opposing viewpoints (notably, between Dr. Blix and Mr. George Aldrich, representative of the U.S. State Department with the present author as mediator) a resolution was passed which requested the ICRC to convene a conference of governmental experts to study the question of conventional weapons that might be deemed to cause unnecessary suffering or have indiscriminate effects. This was a moment of great importance in the sequence of events: a number of Governments 29 30 31 32

Weapons that May Cause Unnecessary Suffering or Have Indiscriminate Effects, Report on the Work of Experts, published by the ICRC in 1973. Ibid., p. 71. Ibid., pp. 8, 9. Res. XIV.

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which had thus far been unwilling to get involved in any serious discussion of conventional weaponry, had now completely shifted their positions and stated themselves ready to take part in such discussions. After this decision of principle, it was merely a matter of working out a proper mandate for the experts. This was done at the first, 1974, session of the Diplomatic Conference on humanitarian law. As a result, once again, of a good deal of negotiating (in which, besides Mr. Aldrich and Dr. Blix, Mr. David Miller of Canada also played a major role) the ICRC was finally able to introduce a document containing an agreed programme of work and terms of reference for the Conference of Government Experts on conventional weapons, which the ICRC at the same time declared itself ready to convene. At this juncture, and prior to going on to a discussion of the Conference itself, it may be useful to recapitulate some of the most important aspects of the events recorded so far. These are, in fact, two; one concerns the scope of the prohibitions sought, and the other their character. The ICRC, it will be recalled, started from a preoccupation with the risks threatening the civilian population. This preoccupation, which stemmed as much from the events of the Second World War and before as from the introduction of the nuclear weapon, was subsequently only enhanced by the experience of modern guerrilla warfare, both in Vietnam and elsewhere. The ICRC was of course well aware that certain modern conventional weapons could be deemed to be gravely injurious to combatants as well, perhaps even to a degree that ought to be regarded as unnecessary; but it felt that this aspect of the matter really was one for Governments to deal with in the first place, and that the task of the Red Cross in this respect was confined to reminding the parties of the principles involved. This attitude found – and finds – support on the part of a number of Governments, who are ready to discuss the impact of the use of weapons on the civilian population but who are extremely reluctant to go one step further and put at issue the use of the weapons as such. In opposition to this tendency another one has developed, which by this time may be said to have gained the upper hand, and according to which the debate cannot be confined to the protection of the civilian population but should embrace the “protection of combatants” as well. As the suggestions and propositions emanating from the representatives of this viewpoint show, their concern – and, with that, the scope of the rules they seek to achieve – is wider in that it encompasses the anti-personnel effect of the weapons as well. From another 33

34

Virtually coincidentally with the Teheran Conference, the UN General Assembly dealt with the question of weapons and in Res. 3076 (XXVIII) of 6 Dec. 1973 took note of the invitation to the ICRC to convene a conference of government experts. Doc. CDDH/IV/4; Summary Records of the Ad Hoc Committee’s 7th meeting, para. 40 et seq.; Report of the Ad Hoc Committee, Doc. CDDH/47/Rev. l, paras. 5263.

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angle, their goal is not to ban certain weapons on account of the threat they present to national security (and thereby to influence the military balance) but to protect human beings from what they consider to be unnecessary evils of war. This aspect of the matter is closely connected with the other one, viz., the question of the character of the prohibitions sought. Here, it may be useful to revert to the difference of opinion concerning the forum where the question of conventional weapons should properly be dealt with: should this be one of the existing disarmament bodies, or the humanitarian law Conference? According to some, as will be recalled, negotiations in the disarmament fora tend to hinge on strategic considerations first and foremost, whereas the humanitarian law forum may be expected to start from a “humanitarian concern”. As to this, it should be emphasized that no matter to what extent the efforts to bring about rules of the type discussed here may be prompted by humanitarian concerns derived from the “inhumane”, “perfidious” or “cruel” character of certain weapons, a different set of arguments are bound to enter into the considerations of those taking part in the lawmaking process; arguments which have a bearing on the military utility of the weapons concerned, the impact any prohibition or restriction on use would exert on national or bloc armaments, the need and cost of substitution, et cetera. In short, the question at issue is, in the terms of the League of Nations Disarmament Conference (1932-34), one of “qualitative disarmament”. As the records of that Conference show, humanitarian concerns as much as strategic and similar considerations had guided its deliberations concerning the subject-matter of specific weapon prohibitions, and it seems incontestable that this cannot be otherwise in any meaningful debate on the matter, that is to say, a debate which is intended to achieve effective as opposed to paper results. There is no denying that similar considerations of military interest play an important role in other chapters of the law of armed conflicts as well; notably in the chapter dealing with the protection of the civilian population against the effects of hostilities, a subject which at present is being dealt with in the context of the reaffirmation and development of international humanitarian law without anyone taking offence at this and claiming that, as of rights, it should be treated as a disarmament issue. However, although conceding this similarity in principle, the fact remains that a far more complicated set of political, economic, strategic and tactical considerations is at play in the question of weapons than in any other chapter of the law of armed conflicts, and the weight that such considerations carry in the decision making process is accordingly greater. The above factors underlie the persisting uncertainty as to whether prohibitions or restrictions on the use of certain contemporary conventional weapons will ultimately be achieved in the setting of the Diplomatic Conference on humanitarian law or in a disarmament forum. They also are at the root of the concern of the ICRC, shared by quite a few Governments, lest the complete integration of the work on the weapons issue with that on the Draft Protocols might imperil the latter. Thus far, those who share this fear have succeeded in avoiding

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such a total integration, with the result that in the Diplomatic Conference the subject of weapons is still being treated on a different footing from that of the Draft Protocols. The Conference of Lucerne is itself one of the manifestations of this different treatment. 3

Procedure and Politics

The Conference was organized by the ICRC under rules of procedure which it had itself established, with a view to avoiding the Conference having to spend its time on drawing up its own rules. Yet, procedural questions could not fail to crop up at the very outset. The first such question concerned the election of officers. While the Conference had no difficulty in electing Dr. Jean Pictet, VicePresident of the ICRC, as its President, it proved impossible to satisfy the needs of the Conference with the mere five Vice-Presidents which the ICRC had foreseen in Rule 6; instead, eight Vice-Presidents were elected “with a view to ensuring representation of all geographic regions” – an unusual formula, which served to express the feeling of some that the representation was still not equitable. Even greater difficulties were encountered in selecting a rapporteur, or rapporteurs. As there was to be no summary record of the meetings, the report would be of the utmost importance. It was therefore only after some days of negotiating that the Conference finally saw fit to appoint the present author as its principal rapporteur, with Mr. H.J. Rytz (Switzerland) and Dr. J.W.Ardagh (New Zealand) as co-rapporteurs for military and medical aspects respectively. This team of rapporteurs took great pains to work out an objective, balanced report, of a debate in which more often than not diametrically opposite views were defended. While the result of their labours was accepted with gratitude, especially by the experts of Western countries (who, having taken part for the first time in this debate, saw their views represented on an equal footing with those of the declared protagonists of sweeping prohibitions), there was a somewhat less enthusiastic feeling among the latter experts, who felt that this balance of views was disadvantageous to their cause. It was interesting to see how this subsequently led to a complete shift in positions: while at the time of the Lucerne Conference it was the representatives of several Western countries who had the strongest initial objections to appointing the present author as (principal) rapporteur, at the time of the 1975 session of the Diplomatic Conference (when the modalities for a second session of the Experts Conference were being discussed) the disappointment experienced by Dr. Blix in particular led him to attempt to eliminate the whole idea of a “report of the Conference” and have it replaced with nothing but the summary

35 36

Report (1975), p. 97: Annex 2. Ibid., para. 6.

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records of plenary sessions (in which the most vociferous experts would occupy the greatest number of pages) and the reports of working groups. The question of participation in the Conference provided another procedural/political incident. According to Rule 2, participation would be open, inter alia, to the experts of “States invited to the first session of the Diplomatic Conference.” That session had, by a narrow margin, decided not to admit the Provisional Revolutionary Government of South Vietnam and the ICRC had subsequently, by means of an enquiry among the Governments made in the course of its preparations for the Lucerne Conference, ascertained that an even stronger majority of Governments was disinclined to accept the P.R.G. as a participant in that Conference. In view of Rule 2, which the ICRC had itself established, this enquiry was strictly speaking superfluous and politically not very adroit, as it betrayed a lack of confidence in the Rule itself. Inevitably, therefore, the question of the admission of the P.R.G. was brought up at the very outset of the debate, where “a number of experts expressed regret at the decision taken by the ICRC”, giving a variety of reasons why this was “both ill-founded in law … and irregular on account of the form which the consultation by the ICRC had taken.” Rule 2 was, however, respected to the extent that no attempt was made to have the Conference overthrow the decision – a procedure, incidentally, which would have been difficult to realize in view of Rule 8(2) which provided expressly that the Conference would not adopt any resolution or recommendation and would not vote. The same issue led to another incident, involving Mr. Nguyen Van Luu (North Vietnam) on the one side and the rapporteur on the other. In explaining his views on the question of admission of the P.R.G., Mr. Van Luu had considered it necessary to speak at great length on the perfidious nature of the “Saigon clique”, the “American imperialists” etc. However, Rule 8(3) provided (in accordance with established Red Cross practice) that the Conference would “abstain from any discussion of a controversial or political nature.” The rapporteur was therefore not prepared to reflect the abusive language of the North Vietnamese expert in the report. In the meeting at which the report was discussed, this stand was challenged by the expert in question, supported by a number of his political friends. As the President of the Conference had for the purposes of that particular discussion left the Chair to the rapporteur, and since – as noted above – the Rules of Procedure did not provide for any decisions being taken by the Conference, it was up to the rapporteur to conduct the debate on this delicate issue and, finally, to decide it; a most disagreeable position, from which he finally extricated himself by relying on the quoted Rule and on “established parliamentary usage”, arguments which led him to decide “to take note of the objections 37 38 39

See hereafter, text at note 97. 5 NYIL (1974), p. 27. Report, para. 3.

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and the request formulated” by the expert in question. Needless to say, the legality of this “rapporteur’s decision” was subsequently challenged by some experts, but in vain. One peculiar consequence of this incident was that the Conference, having been so explicitly confronted with its lack of power to take decisions, could not be asked to adopt the report. This being so, the report makes mention only of its having been “discussed chapter by chapter” and of the fact that the “remarks presented by experts in the course of that discussion have been duly taken into account.” A final remark under this heading: In accordance with the decision on admission of liberation movements taken at the first session of the Diplomatic Conference, Rule 2 provided for the participation of experts appointed by such movements. This was a matter of the utmost importance: had we not been reminded by the proponents of such participation that they were the people who really had first-hand knowledge, although mostly as victims, of the effects of modern conventional weaponry? In this respect, their participation proved to be a huge disappointment: few movements were represented at all, and the experts they sent for the most part kept completely silent. 4

Legal Aspects

As far as numbers are concerned, the Conference was attended by some 150 experts coming from 49 countries from all regions of the world. They were a mixed lot indeed: among them were officers of all branches of the armed forces, ballistics and technological experts, military and civilian surgeons and other medical men, lawyers and diplomats. The lawyers had their day in discussing the first item on the agenda: proposed legal criteria governing the use of weapons. This discussion served two purposes: to clarify as far as possible the criteria involved, and to help the other experts gain a better understanding of the factors determining the legality or illegality of the use of specific weapons falling within the scope of their expert knowledge. The debate on this first item, which profited from an excellent paper by Colonel Sir David Hughes-Morgan, of Great Britain, was inconclusive in that it did not result in any agreed formulations. It was all the more disappointing to those few experts who had set their hopes even higher, aiming at the identi40 41 42 43

Para. 285. Para. 283. 5 NYIL (1974) p.28. Many documents were introduced at the Conference. Their large number and unequal quality ultimately forced the Bureau to decide that none of them would be annexed to the report; instead, Annex 4 provides a list of the documents. Report, para. 15.

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fication of legal parameters so accurate that they could be applied almost automatically to any given weapon. For those who were somewhat more modest in their expectations, however, the debate contributed significantly to clarifying the various criteria discussed. These were mainly: unnecessary suffering, indiscriminateness, perfidy, and the dictates of the public conscience. 4.1

Unnecessary Suffering

As for the criterion of unnecessary suffering, questions discussed included the very concept of suffering (which was generally considered to comprise such factors as mortality rates, the painfulness or severity of wounds, and the incidence of permanent damage or disfigurement) and the factors to be taken into account in assessing what suffering should be considered as unnecessary. Leaving aside those few experts who were not prepared to accept the idea of “unnecessary” suffering (as this implies that other wartime suffering is considered “necessary”) and accepting that an equation is at issue here between the element of suffering and that of military necessity, there were those, on the one hand, who held that the element of military necessity in this equation consists solely of the capacity of a weapon to put an enemy hors de combat. Even then, however, the question would remain how much injury is required to disable an enemy soldier: if one is to believe certain older military manuals, the amount of energy required to put a Russian soldier out of action would be six times the energy required in the case of a French soldier. Other experts, on the other hand, held that military necessity as an element in the choice of weapons includes completely different factors as well, ranging from the destruction or neutralization of enemy material to the enhancement of the security of friendly forces. Another aspect brought up in this debate concerned the well-known question of whether the (solely authentic) French text of Article 23(e) of the Hague Regulations has been properly translated into English. In the official British translation of the French text of 1907, the words “armes … propres à causer des maux superflus” have been translated as “arms … calculated to cause unnecessary suffering.” This involves two questions: whether “propres à” is the same as “calculated to”, and whether “maux superflus” is correctly rendered by “unnecessary suffering”. The experts generally agreed that the translations were not the best ones imaginable; that “injury” has a more objective connotation than “suffering”, and that “calculated to” contains an element of design which might not be inherent in the French “propres à”. The British translations were, however, adopted shortly after the 1907 Hague Peace Conference, and they have come to be accepted as 44 45 46 47

Para. 16. Para. 23. Para. 19. Paras. 24-27.

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law as much as the French original. In this light, several experts rightly held that “it would be unthinkable for this Conference, by merely expressing its preference for another translation of the original French text, to remove” the impact of the British translations from the body of international law. 4.2

Indiscriminateness

The criterion of indiscriminateness, although not so far expressed in unequivocal terms in any treaty in force or other international legal instrument of equal standing, was recognized by the experts as a valid standard of the law of armed conflict. Yet, this did not imply an equal readiness to accept the existence of a rule prohibiting “indiscriminate weapons”. To many, especially among the Western experts, the latter question really was an academic one, as they did not accept the existence, within the category of conventional weapons, of types of weapon which are intrinsically indiscriminate. In their opinion, all conventional weapons can be used with or without discrimination, so that the method of use rather than a weapon’s properties would in general be the decisive element in determining whether in a concrete case the standard of discrimination has been respected or violated. These experts argued (evidently with the experience of recent armed conflicts in their minds) that it would be wrong to attempt to obtain the prohibition of certain weapons “merely on the ground that they had been used indiscriminately in the past and that the remedy must be to formulate a sensible restriction on such a method of use.” The task of formulating such “sensible restrictions”, it may be added, belongs properly to the domain of the Diplomatic Conference on humanitarian law and, indeed, has in the meantime been brought to a successful end in that forum. Against this line of argument, some other experts defended a view which had already been advocated in the report of the 1973 experts meeting, to the effect that not only weapons indiscriminate by their very nature but also weapons “whose normal or typical use would be one which had indiscriminate effects” would have to be considered indiscriminate weapons. This view has more force than may appear at first glance: past experience may in certain circumstances provide a sound basis for future expectations regarding the use of specific weapons, 48 49

50 51 52

Paras. 20-22. Nearest come resolutions adopted by the XXth International Conference of the Red Cross (Res. XXVIII) and the UN General Assembly (Res. 2444 (XXIII) and 2675 (XXV)) expressing the principle that “distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible.” The only examples given by Dr. Blix, gas and bacteria, do not fall within the category of conventional weapons. Paras. 29-31. Para. 31.

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as much as with regard to other matters. It should be admitted, however, that the validity and persuasive force of such expectations will depend to a large extent on the actual conditions under which the experience was gained, and they will have great difficulty in standing up against a sufficiently credible statement of changed intentions on the part of (potential) users of the weapons in question. An example may illustrate this point: the fact that napalm bombs were often used indiscriminately in the Vietnam war is not of itself sufficient to convince all concerned, and especially the military among them, of the need to ban all possible uses of the weapon, even the most discriminate ones. Some experts tried to find a compromise solution between the two extreme positions described above, by introducing the element of accuracy into the definition. In their view, “those weapons ought to be regarded as indiscriminate which, having regard to their effects in time or space, cannot be employed with sufficient or with predictable accuracy against the chosen target.” This, again, sounds promising; but another speaker warned with some justification against a reliance on accuracy in this context: “accuracy” is an intrinsically relative concept, and while it may serve to compare results gained with different weapons or with the same weapon in different situations, it provides but a poor tool for determining a question as absolute as the indiscriminate character of a weapon as such. 4.3

Perfidy

Similar differences of opinion became apparent with respect to “treacherousness” or “perfidy” as a criterion for the admissibility of specific weapons. Some experts were convinced that this deserves a separate place on the list of existing legal criteria, whereas others felt that it does not present the characteristics of an independent standard, but rather constitutes an element in the determination whether a given weapon causes unnecessary suffering or is used without discrimination. 4.4 Dictates of the Public Conscience The “dictates of the public conscience”, mentioned in the famous Martens clause in the preamble to the Hague Convention of 1899/1907 respecting the Laws and Customs of War on Land, were referred to by many of the participants in this debate on legal criteria, although views differed as to their importance and effect. To some, the public conscience amounts to a distinct standard, so that a strong demand on the part of public opinion is sufficient to establish a new rule. In their view this had happened, e.g., with respect to the question of irreparable damage to 53 54 55

Id. Id. Paras. 33-34.

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the environment, where a “criterion of ecological damage” had emerged; another example they found in “the abhorrence evidently provoked by the use of certain weapons, such as napalm and other incendiary weapons.” The idea that the “dictates of the public conscience” would constitute a direct source of international law was, however, strongly – and rightly – contested by numerous other speakers. While they were far from inclined to disregard it and, indeed, admitted that it could at times constitute a strong driving force inducing those in power to take a course they would not otherwise have taken, these experts refused to regard it as anything but “a political … factor, which governments should take into account in examining and assessing the various questions involved in the deployment and use of modern conventional weapons.” Mention should finally be made of the completely different approach taken by Professor Igor Blishchenko of the U.S.S.R. In his view, one should start from present-day international law and international relations, and here one finds “such basic principles as the non-use of force and equal security for States” (the latter, it should be noted, a relative newcomer in the family of basic principles of peaceful coexistence). The principle of non-use of force “implied a prohibition against the use of any and all weapons of war”, except for “the case when a people would exercise its right of self-defence.” Disarmament was therefore the primordial goal, and in that context it would be necessary to take into account all weapons without exception, whether conventional or non-conventional. Always in that context (and on the condition that negotiations were conducted in the proper forum) it would of course be open to Governments to “conclude agreements proscribing the use of specific weapons”; a grudging admission which he qualified even further by adding “that such agreements, to be effective, ought to be general.” While few experts shared the Russian feeling that we were all on the wrong road and that we should start at the disarmament end instead (an approach which the United Nations has pursued with little success since its early days) there was widespread support for his contention that prohibitions or restrictions on the use of specific weapons can only be expected to be effective if they are generally accepted – a reflection which immediately leads to the conclusion that it would be wrong to expect too many results in this area of national security, where the most diverse interests are at stake. Be this as it may, one outcome of this entire debate on legal criteria was the realization that there was room for further clarification. It soon became apparent, however, that there existed little inclination to continue the search for clarity in the form of a lawyers’ exercise. To some, this would be an idle exercise in that it could not be expected to diminish the divergences of opinion that had emerged 56 57 58

Paras. 35-37. Para. 38. Para. 39.

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from the debate. The general feeling was, moreover, that the process really had to operate the other way round: further elucidation of existing criteria, or even the emergence of new ones, could be expected first of all as a result of discussions on the military and medical aspects of the use of specific weapons. 5 Technical Aspects A survey of the discussions at the Lucerne Conference concerning the various categories on the agenda could easily assume a highly technical character. One could discuss, for instance, the difference between “intensive-type” and “scattertype” incendiary agents and, in that connection, between incendiary bombs and firebombs (the latter being the well-known canisters filled with napalm, devices which according to the experts, and contrary to popular belief, can be delivered with great accuracy, viz., with a DEP or Deflection Error Probable of 10-20 metres and with a REP or Range Error Probable of 30-60 metres). Or attention could be focused on phenomena of “transonic flow”, which may occur when a projectile with a certain high speed penetrates into a medium such as the human body. Or, again, the difficulty of determining what is the “lethal zone” could be examined, e.g., of a fragmentation bomb: is this the zone inside which everybody gets killed, or outside which nobody gets killed, or in which 50 of those present get killed? The latter question kept even the specialists divided, and it therefore seems justified to leave it aside here, with all those many other primarily technical questions which had better be left to the specialists concerned (and, for that matter, to other journals). Here, we may confine ourselves to a brief exposé of the matters discussed. The agenda included the following items: incendiary weapons, small-calibre projectiles, blast and fragmentation weapons, delayed action and treacherous weapons, and future weapons. Each of these categories was examined both from a military and a medical point of view; the military part of the debate included such aspects as the military value and effects of the various weapons; their functional interrelationship with other weapons and weapon systems; possible alternatives, and the accuracy of the weapons at issue and the danger of their use affecting civilians and combatants alike. The medical experts focused on the medical effects of the various weapons, including the degree of suffering or injury they cause. These technical discussions among military and medical experts were followed by a debate in which the lawyers and diplomats could again join, viz., an assessment of the weapons discussed in the light of applicable criteria and of the practicability of prohibitions or restrictions on the use thereof.

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Para. 42. Paras. 11-12.

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Incendiary weapons (or “incendiary munitions”, as they were preferably referred to) received the closest attention of the experts. An informal working group was put together (the only one during the Conference) to discuss the key issues of the definition and classification of the munitions in question. This group achieved consensus on the following definition: “For the purposes of this Conference, an incendiary munition has been considered to be any munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame and/or heat produced by a chemical reaction of a substance delivered on the target.” The group also recognized that there exist certain munitions which may have secondary or incidental incendiary effects but which do not fall within the definition just quoted, for instance: illuminants, tracers, smoke, signalling systems and fuel-air explosives. Some difficulty arose however with respect to munitions, such as certain armour-piercing and anti-aircraft projectiles, which combine incendiary with other distinctive effects. Agreement on whether these projectiles fall within the category of incendiary munitions proved impossible to achieve; this, obviously, not on account of any intrinsic definitional problems but because for some of those taking part in the exercise the decision to include the projectiles in question among the category of incendiary munitions would necessarily entail acceptance of their prohibition, along with the rest of incendiary munitions. Interestingly, it was in particular the Swedish expert who for this reason refused to regard the projectiles as “incendiary munitions”; another proponent of the prohibition of incendiaries, the expert of Mexico, for the very same reason was all in favour of including the projectiles among incendiary munitions and, thus, banning them from use. This episode is clear evidence that considerations of national security will enter into the deliberations even of experts who, like the Swedes, have committed themselves so unreservedly to the cause of “qualitative disarmament”. The discussion on incendiary weapons provided a great deal of pertinent information, much of it in direct refutation of information published earlier, e.g. in the napalm report of the Secretary-General. The conflicting nature of the evidence supplied led to radically opposite conclusions as to the admissibility of use of such weapons. This division of opinion became apparent as much in the assessment of the questions of unnecessary suffering and indiscriminateness as in the views expressed regarding prohibition of incendiary weapons. To some experts, incendiary weapons do cause unnecessary suffering in that they cause exceptionally grave wounds, are of limited military value and can be substituted by other

61 62

Chapter III, paras. 43-117. Paras. 49-50.

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weapons. Other experts, who admitted that burn wounds are probably the worst possible type of wound, were not convinced that the use of incendiary weapons results in all cases in an exceptionally high incidence of casualties, let alone of gravely wounded. They moreover felt that the military value of these weapons was far from negligible, and they feared that substitution of these weapons by other ones might even result in an increased number of casualties and of severely wounded in particular. As for indiscriminateness, while some experts held that incendiary weapons are inherently indiscriminate, others were of the opinion that this depended entirely on the method of use of such weapons. In this respect, a method of use condemned virtually unanimously was the massive use of incendiary weapons against civilian population centres. For the rest, some experts felt that attention could more usefully be focused on the anti-personnel use of such weapons than on their anti-matériel role. The views regarding prohibition of incendiary weapons once again fell into two groups, the one advocating their outright prohibition and the other holding that insufficient grounds for such a sweeping conclusion had been shown. One interesting detail in this debate concerned the possibility of attacks on military objectives situated within population centres: while an expert from the first group pointed to the risk that incendiary weapons, when used in such attacks, might start fires spreading over a wide area outside the target, an expert from the other group pointed to the responsibility of the authorities of a country who should ensure that no vital military objectives be found in civilian population centres. 5.2

Small-Calibre Projectiles

The discussion on small-calibre projectiles – i.e. rifle ammunition with a calibre of some 5.5 mm or less, which travels with an initial velocity of over 1000 metres per second, as against the common 7.62 mm round with a muzzle velocity of some 800 metres per second – was, if possible, even more technically complicated. The difficulty here resided not so much in differences of opinion as to military utility 63 64 65 66 67 68 69 70 71 72

Para. 101. Para. 102. Para. 103. Para. 104. Para. 105. Paras. 109-111. Paras. 112-114. Para. 111. Para. 112. Chapter IV, paras. 118-154.

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or characteristics, but rather in uncertainty about the wound ballistics and medical effects of these, as indeed of other, projectiles. Available data stemmed from computer modelling, gelatine-block experiments, tests on anaesthetized animals and, last but not least, gunshot casualties. As was generally agreed, the data indicated that earlier publications had overstated the significance of velocity as a determinant of wound severity, and other physical parameters such as angle of yaw, angle of incidence, projectile geometry and projectile spin-rate were also likely to have a significant influence. The military and medical experts also agreed that much more study was necessary, particularly in the search for common ground between experimental and clinical data. Several of them suggested that research on a cooperative basis, involving experts from different countries, might be desirable. In the evaluation of small-calibre projectiles, great hesitancy became apparent where the question of unnecessary suffering was concerned. The high military value of these weapons was recognized in all quarters. As for the question of whether this element of military value was insufficient to compensate the suffering caused, most experts found it simply impossible to express a definite view. The overall conclusion ensuing from the debate was therefore that further study and research were required to arrive at more definite conclusions. 5.3 Blast and Fragmentation Weapons In the debate on blast and fragmentation weapons, the accent lay heavily on the latter category of weapon. Weapons discussed in this category ranged from artillery to the more recently developed types of pre- or controlled-fragmented weapons and fléchettes. An element of particular importance in the discussion on military aspects concerned the possibility of substitution by other weapons – a possibility which was estimated to be poor indeed for these weapons as a class. This element returned once again in the evaluation of these weapons, where no suggestion was made that blast and fragmentation weapons should be banned as a class. Some experts held, on the other hand, that certain specific types of such weapons (viz., anti-personnel cluster bombs and fléchette weapons) acted indiscriminately or caused unnecessary suffering and ought therefore to be prohibited. Other experts were not convinced that even these specific weapons did in effect cause unnecessary suffering or have indiscriminate effects. 73 74 75 76 77 78 79

Paras. 130-144. Para. 145. Paras. 146-154. Chapter V, paras. 155-218. Para. 182. Paras. 212-214. Para. 215.

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Delayed-action and Treacherous Weapons

While the category of delayed-action and treacherous weapons encompasses a wide range of weapons, the experts focused their attention, especially in the evaluation, primarily on mines and booby-traps. As for mines, while some experts felt that these are inherently indiscriminate and that at least certain types of antipersonnel mines ought to be prohibited, others were of the opinion that mines, as other weapons, can be used with or without discrimination. In this connection, several experts noted the possibilities for marking mine deposits and for the application of reliable self-destruct devices. Booby-traps ought in the eyes of some experts to be banned. Others thought that this was going too far, and that the question at issue really was the use of such devices rather than their inherent nature. There was, however, quite some sympathy for a suggestion of the President that booby-traps gravely endangering the civilian population might be banned. 5.5

Future Weapons

The discussion of future weapons, finally, ranged over subjects such as laser weapons, microwave and infrasound devices, light-flash devices, geophysical and environmental warfare and certain novel modes of electronic warfare. The upshot of this debate was recognition on the part of many experts that one should be constantly aware of the dangers in unrestrained weapon developments. This led these experts to advocate both domestic and international procedures for the timely review of new weapons and weapon developments; a task, indeed, which was recognized as long ago as 1868, at the time of the Declaration of St. Petersburg, and which will remain an urgent necessity probably for a long time to come. 80 81 82 83 84 85 86 87 88 89 90

Chapter VI, paras. 219-259. Paras. 248, 254. Para. 249. Para. 248. Paras. 248, 254. Paras. 250, 256. Para. 257. Chapter VII, paras. 260-281. Paras. 277, 279. Para. 281. The Declaration renouncing the use, in time of war, of explosive projectiles under 400 grammes weight concludes with a paragraph in which the Parties “reserve to themselves to come hereafter to an understanding whenever a precise proposition shall be drawn up in view of future improvements which science may effect in the

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This is not to say that weapon developments were categorically rejected by the experts. Indeed, the expert of India, Mr. L. Dayal, took the position that, if a nation was forced into war, its right to throw its ingenuity and technology into the balance could not seriously be questioned, and especially a State possessing only small armed forces might be expected to rely on technology-intensive weaponry whenever that course was open to it; a disquieting statement, especially in view of the nuclear explosion which India has since that time effected. It was also a very realistic statement, depicting accurately what will normally happen in the course of a war and, indeed, in the preparatory stage. It cannot mean, however – and this was rightly urged by Dr. Esmat Ezz, of Egypt, and some other experts – that States could claim on the basis of this argument of necessity a licence to disregard the limits set by international humanitarian law. 6

Evaluation and Perspective

An evaluation of the Lucerne Conference may conveniently start from an episode in the debate concluding the examination of small-calibre projectiles, when the expert of Sweden (Dr. Blix) expressed regret at the trend in the evidence presented to the Conference, much of which was, as indicated above, openly contradictory to information supplied earlier. He would have preferred, he said, “more attempts at constructive analysis.” To this, Colonel Sir David Hughes-Morgan, of Great Britain, retorted that “the debate had been highly instructive.” This bit of dialogue demonstrates clearly the two basic attitudes assumed by participants. There were those, especially among the group of experts led by Sweden, who had for all practical purposes formed their opinions before even coming to the Conference, on the basis of information available to them at that stage. They were firmly convinced that the prohibitions and restrictions they had in mind (and which they had embodied in a working paper submitted to the Diplomatic Conference in February 1974) were, so to speak, foregone conclusions. The task of the Lucerne Conference, as they saw it, would then be, either, simply to confirm these conclusions, or to discuss them in a spirit of “constructive analysis”, that is, without any attempt at fundamentally disrupting the picture of facts and figures underlying their opinions. In contrast, many of the Western experts were convinced that the information on which the “Swedish” propositions rested was both incomplete and, often, inaccurate. They felt, therefore, that the first task of the Lucerne Conference was to set this state of affairs right, and to this end they went out of their way to

91 92 93

armament of troops, in order to maintain the principles which they have established, and to conciliate the necessities of war with the laws of humanity.” Report, para. 278. Para. 147. Doc. CDDH/DT/2.

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produce a stream of additional information, much of which was precisely of a nature to disrupt the pre-existing picture. From their point of view, this was not only “instructive” but it even constituted a most constructive contribution to the work of the Conference and, indeed, to the cause of “qualitative disarmament”, as in this area only sound facts can provide the solid basis required for any serious attempt to achieve effective results. Incontestably, however, their “constructive/disruptive” contributions led to strong feelings of disappointment and even dismay among the Swedes cum suis, as became apparent from a number of reactions. Thus, in the context of the evaluation of small-calibre projectiles Mr. Obradovic of Yugoslavia suggested that “certain experts” had perhaps been biased by the strong conviction of their governments that the new small-calibre rifles were so militarily valuable that their prohibition ought to be prevented at all costs. He himself added immediately that he was not prepared to accept this as a true explanation, and I think that this was indeed not the case: it was simply that there had been too little information at the basis of the conclusion that the new projectiles ought to be banned, and too much uncertainty prevailed with regard to the properties and effects of the projectiles in question for any firm conclusions to be drawn as to their admissibility or inadmissibility. Therefore, and despite the fact that certain “vested interests” might perhaps militate against a ban on their use, it was certainly not the posture of the Western experts that such a ban was out of the question; they merely contested that sufficient ground existed for such a ban, adding immediately that they were themselves continuing their research in the field and that they were open to any convincing evidence of the objectionable character attributed to the new rifle bullets. A similar reaction to that of Mr. Obradovic came from the expert of Zaïre, Mr. Yakembe Yoko, who on two different occasions gave vent to his feelings of dismay at the attitude of the Western experts. At times, he said, he had had the impression that he was at an armaments conference rather than at a conference on humanitarian law. To the extent that this amounts to an accusation of bad faith, it is certainly unfounded. Good faith prevailed on all sides; but this could not prevent – nor could it be expected to prevent – differences of opinion, even among experts. In sum, the Conference of Lucerne was a necessary and indeed inevitable step in a process of often “agonizing reappraisal” of a number of developments in the field of conventional weapon technology and use. Some may have regarded it as a step backwards, but wrongly so; it constituted a tremendous step forward, involving, as it did, qualified experts from all over the world in an attempt to get at the facts concerning these developments and to give them their right place in 94 95

Report, para. 147. Para. 218. The other occasion was in the course of the debate on the follow-up, which is not recorded in the Report.

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the whole range of considerations governing the decisions Governments have to take in these matters. Far from leading to any immediate results, the Conference generated more questions than answers. Settled opinions were overthrown and doubts took their place. The work, in other words, is not by a long way finished. This, indeed, was evident to most participants in the Conference, and despite the protests of those who, like Mr. Yoko, believed that the documentation assembled thus far provided sufficient information for Governments to base their decisions on, the Conference listened with approval to the President’s announcement that the ICRC would be prepared to convene another conference of government experts. This second session of the Conference has meanwhile been convened. After some further deliberations and negotiations, both in the UN General Assembly and at the second session of the Diplomatic Conference, the ICRC on 11 June 1975 sent out a letter confirming this fact to all Governments and other interested parties. The session will be held at Lugano (Switzerland) from 28 January - 26 February 1976 and the questions at issue will be basically the same as at the first session, with one all-important difference: while the same categories of weapon will be on the agenda, the Conference will “focus on such weapons as have been – or may become – the subject of proposed bans or restrictions of use” and will “study the possibility, contents and form of such proposed bans or restrictions.” This means that the accent at Lugano will be on an examination of the legal and political merits of concrete propositions. A first such proposition has meanwhile been tabled: on 16 May 1975, the delegations of Sweden and nineteen other States attending the Diplomatic Conference addressed a letter to the ICRC in which they formulated a concrete proposal concerning the prohibition of incendiary weapons. Other proposals, both from the “Swedish” and the Western group, will certainly follow. While the outcome of this exercise remains unpredictable, the mere fact that it has gotten under way deserves to be welcomed with much satisfaction. After all, it was long overdue that Governments, confronted with the tremendous developments in conventional weapons technology, would attempt to make a concerted effort to “conciliate the necessities of war with the laws of humanity.”

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Para. 282. Res. 3255A (XXXIX) of 9 Dec. 1974 took note of the work of the Lucerne Conference, appealed to all Governments to cooperate in the clarification of the issues, and invited the Diplomatic Conference to continue its consideration of the subject; Res. 3255B (XXXIX) of the same date, a Syrian initiative, “condemns the use of napalm and other incendiary weapons in armed conflicts in circumstances where it may affect human beings or may cause damage to the environment and/or natural resources.” The latter is an evident (and, it may be suggested, futile) attempt to prejudge a good number of controversial issues. Report, para. 282.

Chapter 8 The Conference of Government Experts on the Use of Certain Conventional Weapons, Second Session, Lugano, 28 January - 26 February, 1976*

As recorded in the previous volume of this Yearbook, most participants to the Conference of Government Experts on the Use of Certain Conventional Weapons held at Lucerne from 24 September to 18 October 1974 had come to realize that a second conference was necessary to pursue the issues which had proved so controversial. Since a mere repetition of the Lucerne exercise would serve no useful purpose, it was decided that such a second conference would concentrate on the weapons which might have been, or become, the subject of proposals to ban or restrict their use, and it would have to study the possibility, contents and form of such proposed bans or restrictions. Duly convened by the ICRC, a conference with these terms of reference met from 28 January to 26 February 1976 at Lugano, Switzerland. So as to avoid having to start again with the drawing up of Rules of Procedure and similar organizational matters, it was designated as the “second session” of the Conference of Government Experts on the Use of Certain Conventional Weapons. Apart from its modified terms of reference, the most important change was that the debate would be conducted not only in plenary meetings but also in a general working group, the main difference being that summary records would be kept – and published – of the plenary meetings but not of the general working group. The idea behind this set-up was to provide experts with an opportunity to speak for the record (in plenary) as well as rather more freely in a true dialogue among experts (in the general working group). The idea was good but it failed to materialize; in actual fact, experts in the working group either repeated or simply continued what they had been saying in plenary, and the debate throughout the * 1 2

Published earlier in 7 NYIL (1976) pp. 197-206. 6 NYIL (1975) p. 77, at p. 101; Rule 1(2) of the Rules of Procedure of the second session, Report (1976) p. 227. Rules 5 and 11 of the Rules of Procedure, Report pp. 229, 230. Another difference was that different officers were elected for the general working group from those for the plenary meetings. As for the function of Rapporteur, the Conference, after some quite disagreeable bickering, took the rather unfortunate decision to designate the present author as Rapporteur both of the plenary and of the general working group. It may be put on record here that the report of the working group was in fact written by Mr. Julian Perry Robinson, who was present at the Conference as an observer for the World Health Organization.

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Conference had the character more of a series of separate and often conflicting statements than of a dialogue in the true sense of the term. Participation at the second session was somewhat more limited than at the first session: some 40 countries were represented, as well as some organizations, among which the World Health Organization and the Stockholm International Peace Research Institute (SIPRI) should be mentioned in view of the especially active role played by their representatives. The Third World was poorly represented: throughout the Conference, not more than about ten members of the socalled “Group of 77” (which by now has expanded to a group of more than 100 States) were actually present. It should immediately be added that some of these few took a most active part in the proceedings of the Conference, contributing not only political points of view but also expert information on experiments carried out in their countries. The relevance of political points of view derived from the proposal-oriented character of this second session: notwithstanding the highly technical nature of many of the subjects under discussion, political and security considerations could not fail to carry even more weight in the deliberations of government experts than had already been the case at Lucerne. After all, it makes quite a difference whether the use of, say, incendiary weapons is being discussed from the point of view of expert knowledge about the characteristics and effects of these weapons, or with a view to assessing the “possibility, contents and form” of formal proposals seeking to ban or restrict their use. Even more than at Lucerne, the discussions at Lugano were therefore characterized, and at times dominated, by the presence of diplomats in the various delegations. A striking example was the opening session of a special working sub-group of technical experts on small-calibre projectiles: contrary to what might be expected with such a highly technical subject, the main participants in this event were a number of ambassadors, who became involved in a heated discussion of the agenda which the technical experts would be permitted to discuss. The agenda of the Lugano Conference closely resembled that of its predecessor. Once again, legal criteria had not been included as a separate item, this in conformity with the insight gained at Lucerne that the “further elucidation of existing criteria, or even the emergence of new ones, could be expected first of all as a result of discussions on the military and medical aspects of the use of specific weapons.” This was not to say that lawyers had no place in the Conference; first, 3

4 5

One particularly irritating consequence of this set-up will be immediately apparent to anyone who attempts to orient himself in the Report of the Lugano Conference: he will find himself entangled in a complicated, cumbersome document which makes it very difficult to find what one is looking for. Thus an Indonesian expert reported on tests with projectiles of 7.62 and 5.56 mm fired into blocks of soap from distances varying from 50 to 1000 m; Report p. 16. 6 NYIL (1975) at p. 93.

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they were, of course, involved in the drafting exercises undertaken either individually or conjointly by a number of delegations; second, a special working subgroup on general and legal questions was set up in which they could have their fling at a number of interesting questions. The agenda contained, besides the usual “general debate” and “other business”, a list of the various categories of weapon that had also been on the Lucerne agenda: incendiary weapons; delayed-action and treacherous weapons; small-calibre projectiles; blast and fragmentation weapons, and other categories of weapon and new weapons. It would serve little purpose to record here the technical aspects of the discussions on these items of the agenda, if only because these for the most part constituted a repetition of what had already been said at Lucerne. Rather, it may be useful to point out that apart from the group of Sweden cum suis other delegations and groups of delegations also submitted written proposals to the Conference. To the extent that these proposals emanated from Western delegations, they often suggested far less sweeping prohibitions or restrictions than those contained in the comprehensive working paper tabled in 1974 by the Swedish group. This difference of approach came to light very clearly where incendiary weapons were concerned. While the Swedish group wanted to achieve a generic ban on the use of these weapons, allowing an exception only (though not unimportantly) for “munitions which combine incendiary effects with penetration or fragmentation effects and which are specifically designed for use against aircraft, armoured vehicles and similar targets”, the experts of a number of mainly Western countries submitted a working paper the purport of which was merely to protect cities and suchlike “areas containing a concentration of civilians” from attacks by means of incendiary weapons; even so, their proposal specifically reserved the right to attack military objectives within such areas with incendiary weapons, “provided that the attack [would be] otherwise lawful and that all feasible precautions [would be] taken to limit the incendiary effects to the specific military objectives and to avoid incidental loss of civilian life or injury to civilians.” One needs no great knowledge of the subject to realize that the two positions outlined above were too far apart for a compromise solution to be within easy reach. An initiative in that direction was taken by the experts of the Netherlands, the purport being to afford somewhat better protection to the civilian population than 6 7 8 9

Report of the Working Sub-Group on General and Legal Questions, Report, p. 140 et seq. Op. cit. note 5, at p. 99 (note 93). Letter to the ICRC dated 15 May 1975; Report, p. 206. Mexico never accepted the exemption. Doc. COLU/207 submitted by the experts of Australia, Belgium, Canada, Denmark, the Federal Republic of Germany, France, Ireland, Italy, Japan, the Philippines and the USA; Report, p. 181.

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the absolute minimum provided in the “Western” working paper and, besides, to protect combatants from the use of napalm except in given situations. Although arousing considerable interest in most quarters, the initiative failed to achieve its immediate purpose. It should be added, however, that a modified version of the part of the proposal regarding the protection of the civilian population received an even warmer welcome and, indeed, some formal support at the third session of the Diplomatic Conference on humanitarian law, held at Geneva from 21 April to 11 June 1976. On the other hand, the Dutch delegation did not at that time press its ideas concerning the other aspect of the matter, viz., battlefield use of napalm, clearly as it realized that compromise in that area was out of the question for the time being. This episode may show that the road towards an agreed solution for the specific problem of prohibition or restriction of the use of incendiary weapons is a long one. It cannot be travelled fast either, at least if the goal is a widely accepted, effective result. This is not a peculiarity of incendiary weapons: it goes for the whole range of conventional weapons. While this may at times be difficult to accept, especially for those who have become accustomed to achieving quick successes in the UN General Assembly, it is fortunate that even these more impatient individuals have thus far refrained from pressing the matter to the vote - which they might have won, while losing their overall cause. Some modest but unmistakable progress could be registered at Lugano also with respect to mines and booby-traps. A fairly comprehensive working paper submitted by the experts of the United Kingdom and the Netherlands, joined later on by those of France, contained specific proposals on the use of these devices and notably on the recording of minefields, the use of remotely-deliv10 11

Doc. COLU/205; Report, p. 176 et seq. Doc. CDDH/IV/206; Australia and Denmark became co-sponsors of the proposal. Besides definitions of “incendiary munition” and “flame munition” (as a species of the former), the proposal contained three rules: (1) prohibition to attack cities et cetera with incendiary munitions, (2) permission to attack specific military objectives within such areas with incendiary munitions, provided that “all feasible precautions are taken to limit the incendiary effects to the specific military objectives and to avoid incidental loss of civilian life or injury to civilians”, and (3) prohibition to attack specific military objectives within such areas from the air with “napalm or other flame munitions unless that objective is located within an area in which combat between ground forces is taking place or is imminent.” The last-mentioned rule was an interesting attempt to “do something” about napalm. For Sweden, it was indeed “something”, but not nearly enough; this delegation subsequently submitted a working paper of its own (CDDH/IV/208) which was confined to flame munitions: these should be prohibited for use in all circumstances (that is, also on the battlefield) and they were defined in terms of their effects (“primarily designed to cause burn injury to persons or to set fire to objects through the action of flame produced by a chemical reaction of a substance dispersed over the target”), whereas the Netherlands proposal defined flame munitions by their composition (“based on a gelled hydrocarbon”).

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ered mines, the use of mines and booby-traps in populated areas, and the use of certain specified booby-traps and similar devices. The main thrust of these proposals was to achieve a better protection of the civilian population from the effects of these weapons, although the proposed prohibition on the use of boobytraps or similar devices which are “designed to kill or injure by a non-explosive means which stabs, impales, crushes, strangles, infects or poisons the victim” or are “attached to or associated with” recognized protective signs, the wounded or dead, medical equipment or supplies, or children’s toys (the last part of the proposal) clearly sought to extend protection to combatants as well. The proposals drew much favourable comment, besides the inevitable criticism; at all events, the sponsors felt sufficiently encouraged by the debate to continue their efforts and to introduce at the third session of the Diplomatic Conference a set of proposals closely similar to those submitted at Lugano, but taking account of the comments and criticisms made there. As for small-calibre projectiles, the debate at Lugano was virtually a repetition of that at Lucerne. Tests had meanwhile been carried out in several countries, but these had failed to yield any conclusive evidence one way or the other. One particular difficulty seems to be that the behaviour of bullets, both while traversing the air and upon entering the body, depends on so many variables, which in their turn are so difficult to measure, that the setting up of reliable standard tests encounters virtually insurmountable obstacles. This, at any rate, was the upshot of the discussions in the working sub-group of technical experts, which had been brought together precisely to examine the possibility of arriving at agreed standard tests. A further, interesting development in the debate on small-calibre projectiles occurred only subsequently, at the third session of the Diplomatic Conference, when the representative of Sweden introduced a working paper containing a modified version of the earlier proposal on that matter. The earlier version sought to prohibit the use of small-calibre projectiles which would, because of their design or velocity, produce certain effects within the human body: breaking, deformation, “significant” tumbling, damaging shock waves or secondary projectiles. In the new version, the reference to “small-calibre” had been dropped altogether, as well as that to certain causes (design, velocity) as productive of certain named 12 13

14 15 16 17

COLU/203. The proposals were also discussed in a working sub-group of military experts on mines and booby-traps, with Mr. R.J. Akkerman (Netherlands) as rapporteur; Report, p. 146 et seq. CDDH/IV/213; Denmark joined as co-sponsor. Report, p. 154 et seq.; here too, a member of the Dutch delegation, Mr. E.B. van Erp Taalman Kip, acted as rapporteur. CDDH/IV/214. Report, p. 199: CDDH/IV/201.

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effects; instead, it was now proposed simply to prohibit the use of bullets which deform or break easily, or tumble rapidly, in the human body, or have a velocity exceeding 1500 m/sec. The interesting feature of this new form of words is that (apart from the velocity criterion at the end) it closely resembles the language of the Hague Declaration of 1899 prohibiting “the use of bullets which expand or flatten easily in the human body.” That Declaration goes on to define as an example of bullets carrying these features “bullets with a hard envelope which does not entirely cover the core or is pierced with incisions”: the ill-famed dum-dum bullets after which the Declaration is usually named. The example should not however make one lose sight of the general rule which precedes it. In point of fact, it had been emphasized at Lugano that this norm “ought to be respected both in the letter and the spirit.” It was therefore a clever move of the Swedish delegation, while abandoning their original, rather rigid fixation on “small calibre” and “high velocity”, to bring their proposal into line with this “letter and spirit” of the Declaration of 1899: the chances of its being discussed seriously were thereby considerably enhanced. More than that, the new language was probably a closer approximation to their genuine convictions and intentions than could be found in any of the earlier formulations. Obviously, the question remains when bullets, whether of 7.62 or 5.56 mm or an even smaller calibre, can be said to “deform or break easily” or “tumble rapidly” in the human body. The Swedish representative made it clear that what he had in mind were bullets that as a rule (“easily”) expand or flatten in the same manner as the dum-dum bullets as a rule (“easily”) expand or flatten in the human body. For the rest, the Swedish working paper sought to resolve this problem by prescribing simple standardized tests. Not surprisingly in the light of previous discussions, however, several participants in the debate were not prepared to accept this solution straightaway. Much further research and discussion will therefore be necessary before an agreed text can be expected; but it seems not unreasonable to believe that such a result may be obtained in the end. Under the heading of “blast and fragmentation weapons”, two issues attracted special attention: fuel-air explosives, and weapons producing non-detectable fragments. Two proposals dealt with fuel-air explosives, one seeking to ban “the anti-personnel use of weapons which for their effects rely exclusively on shock waves in the air”, and the other prohibiting “to detonate for military purposes gas-air and dust-air mixtures which release gas pressure.” Specific criticism of the first proposal was that it would affect certain types of hand-grenade and land mine besides fuel-air explosives, and of the second that it was not restricted to the 18 19 20 21

Bullets with such extreme velocities do not at present exist, nor are they anticipated; but the Swedes fear that they would cause excessive injury. Report, p. 14: para. 36 of the report on the plenary meetings. COLU/202, submitted by Sweden. COLU/209, a Swiss proposal.

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anti-personnel use of such explosives. More generally, it is still very much a controversial question whether the use of fuel-air explosives against enemy personnel would result in “unnecessary suffering” in the sense of an inadmissibly high death toll: while the Swedish experts maintained that this would be the case, predicting percentages of up to a hundred, their American colleagues equally vigorously denied the correctness of this claim. The remaining vast majority of the expert participants could not but reserve their position, for want of adequate information one way or the other. As for non-detectable fragments, it is an undisputed fact that the possibility exists, either through the choice of substances consisting of light atoms which do not differ appreciably from the human body as far as the absorption of X-rays is concerned, or through the choice of the size of fragments, to ensure that fragments will escape detection by the usual medical methods. A Mexican-Swiss proposal which sought to preclude the use of weapons dispersing such fragments was widely welcomed as a valuable suggestion. As the Australian experts pointed out, however, the prohibition of weapons which only occasionally, and then by chance rather than intent, give rise to wounds in which the fragments cannot subsequently be detected should be avoided; such a situation might arise, for instance, from the necessary inclusion in some munitions of plastic components which can produce a few low-density fragments which, however, because of their number and characteristics are unlikely to be capable of causing significant injury. After some discussion on this and other aspects, a wording was finally arrived at which took account of this criticism and sought to prohibit the use of “any weapon the primary effect of which is to injure by fragments which in the human body escape detection by X-rays”; with this wording the proposal drew very wide (though not unanimous) support. Indeed, it may safely be stated that of all the suggestions, working papers and proposals submitted to the Lugano Conference this one on non-detectable fragments came closest to gaining general acceptance. A few words, finally, about the working sub-group on general and legal questions. This sub-group, set up at the instigation of the Swiss experts, placed on its agenda a number of interesting questions, such as: whether there should be one or more instruments for those conventional weapons that would be subjected to prohibitions or restrictions on use; whether such future prohibitions or restrictions should be considered as a codification of customary law or as new treaty law; what would be the effects of involvement in an armed conflict by non-parties to the instrument or instruments in question; whether the prohibitions or restrictions on use should be cast in terms of absolute obligations or in terms of first use 22 23 24 25

COLU/212. Report, p. 18: para. 50 of the report on the plenary meetings. Ibid., and COLU/216. Report, pp. 122-123: paras. 77-82 of the report of the general working group.

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only; whether there should be a right of reprisal; what rules should govern the entry into force; how the review of new weapons developments and acquisitions should be arranged, both on the national and international levels. The debate on these subjects, although somewhat premature in that it was not based on concrete draft texts in an advanced stage of preparation, provided the participants with an excellent opportunity to ventilate their, often widely divergent, views. The width of these differences may be demonstrated with the aid of one example, viz., the discussions concerning “absolute obligation” versus “no first use” and, in that connection, the right of reprisal. One group of experts, heavily underscoring the direct involvement of national security in these matters of restraints on the use of specified conventional weapons, held that it would be of the utmost importance for future instruments to pay due heed to the principle of reciprocity and, therefore, to be worded in terms of a “no first use” obligation only. Another group preferred to see an absolute obligation, this on the argument that a mere prohibition of first use ceases to have effect as soon as one party to the conflict starts using the weapon in question. This latter group of experts added that the principle of reciprocity could also be reflected in the form of a right to take reprisals, which, they felt, should suffice as a means of enforcing the instrument – the difference with “no first use” being, of course, that the principles of subsidiarity and proportionality must be respected in the case of reprisals which, moreover, must be discontinued as soon as the violation by the other party ceases. This addition may seem somewhat surprising, as the recognition of a right to take reprisals, though less disastrous than unmitigated reciprocity, still considerably weakens an otherwise absolute obligation to refrain from using a certain weapon. From another angle, the very recognition of the right of reprisal in the context of weapons prohibitions can only be considered as evidence of a welcome degree of realism on the part of this group of participants in the debate. In the ensuing discussion of the right of reprisal, views once again differed widely. At one extreme, one expert felt that the very concept was repugnant to the nature of humanitarian law; while this may appear a most idealistic point of view, it should be taken into account that the expert who expressed it had in the previous discussion taken the side of “reciprocity” and “no first use”. Other experts of that group confined themselves to denying the relevance of a discussion of reprisals, since “reciprocity” would govern a future instrument anyway. Among the experts of the opposite group, a lively discussion developed on such delicate

26 27

Report, p. 133. On the difference between pure reciprocity and the right of reprisal, see this author’s Belligerent Reprisals (1971) pp. 339-344, 347.

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questions as the permissibility of reprisals not in kind or near in kind and the conceivability of an effective rule on proportionality. The above may suffice to show that many problems will have to be solved on the legal side as well, before the text of one or more instruments prohibiting or restricting the use of specified conventional weapons may be considered to have been completed. Even then, such a text will have a bearing on existing weapons only, restraints on the use of future weapons being possible only in the form of a general formula (such as the prohibition to use weapons “of a nature to cause superfluous injury or unnecessary suffering”). This leaves, therefore, the problem of national and international review of future developments, a problem that was discussed at Lugano both in plenary, in the general working group and in the working sub-group on general and legal questions. The debate on this important subject may be summarized as follows: While the importance of review on the national level was widely recognized, many experts also emphasized the need for an international review mechanism. However, the question of the modalities of such a mechanism (new intergovernmental organization, regular conferences, a monitoring bureau, et cetera) still elicited the most varied comments. A step forward was that the expert of Austria submitted to the working sub-group an “informal proposal” on the question, thereby providing something tangible to go upon. Despite this, as with the other matters mentioned in this brief survey of the Lugano Conference, the conclusion must be that much work remains to be done before any definitive results can be expected.

28 29

30

For this whole discussion, see: Report, p. 140 et seq.: report of the working sub-group on general and legal questions, in particular paras. 8-9. Art. 33(2) of Draft Protocol I (relating to international armed conflicts) and Art. 20(2) of Draft Protocol II (relating to non-international armed conflicts), as adopted by Committee III of the Diplomatic Conference. Report, p. 146: annex to the report of the working sub-group on general and legal questions.

Chapter 9 The Diplomatic Conference on Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974 - 1977*

1

Introduction

On 10 June 1977, in Geneva, representatives of 97 States, the Holy See and three national liberation movements signed the Final Act of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, thus bringing to a formal close the Conference which in the course of four consecutive annual sessions had deliberated, negotiated, and more or less satisfactorily resolved a large number of often delicate issues of humanitarian law. As related in earlier Volumes of this Yearbook, the ground had been carefully prepared when in 1973 the Swiss Government decided to convene the Conference. In a long series of studies, consultations and conferences the International Committee of the Red Cross (ICRC) had elaborated draft texts for two Protocols, one for international and the other for non-international armed conflicts. The final version of these Draft Protocols was the basis for the work of the Conference. It was also recounted – but may be briefly recalled here – how the Diplomatic Conference ran into grave political difficulties when in its first session it was confronted with demands for the admission “as a government” of the then Provisional Revolutionary Government of South Vietnam (refused by a narrow margin) and with demands for the admission as especially qualified observers, of specified national liberation movements (granted by consensus, but after a prolonged and bitter fight). With these questions settled, the Conference adjourned its plenary meetings and the four Committees of the Whole commenced their work, which was allotted as follows: Committee I: the general provisions opening the two Draft *

1

2 3

Sections I and II of the present paper were published earlier in 8 NYIL (1977) pp. 107-135, and the remaining sections in 9 NYIL (1978) pp. 107-171. The “reunification” of the two sections has led to some additional adjustments, in particular in the numbering and text of the footnotes. Summary record of the 59th plenary meeting: CDDH/SR. 59, 10 June 1977; subsequently, the representatives of 4 more States affixed their signatures to the Final Act. 2 NYIL (1971) pp. 68-90; 3 NYIL (1972) pp. 18-61; 5 NYIL (1974 pp. 3-26. 5 NYIL (1974) pp.26-34.

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Protocols as well as those on execution, and the final provisions; Committee II: all matters relating to the sick, wounded and shipwrecked, and civil defence; Committee III: the rules relating to the conduct of warfare, combatant and prisoner-of-war status, and the protection of the civilian population. The fourth or Ad Hoc Committee was allotted a subject-matter which had not found a place in the ICRC Draft Protocols, viz., possible limitations on the use of specified conventional weapons. The Committees continued their work during the second and third sessions and completed it in the first part of the fourth session. The plenary Conference thereupon resumed its meetings and on 8 June 1977, after a final fortnight of voting and explanations of vote, adopted by consensus the definitive text of two Protocols “Additional to the Geneva Conventions of 1949”, one “relating to the protection of the victims of international armed conflicts” (Protocol I) and the other “relating to the protection of the victims of non-international armed conflicts” (Protocol II). While the above official titles of the two Protocols may suggest that these instruments are solely “additional to the Geneva Conventions of l949”, they actually cover wider ground. Protocol I in particular, although contributing significantly to the “reaffirmation and development” of each of the four l949 Geneva Conventions, makes an even greater contribution in reformulating and adapting to present circumstances the long neglected “law of The Hague” or law of warfare. Codified at the Hague Peace Conferences of 1899 and 1907, the re-codification of this body of law was long overdue, and it is a great point gained that the Diplomatic Conference succeeded in adopting new rules in place of the old ones, which were contained for the most part in the Hague Regulations on Land Warfare of 1899/1907. Weighing the relative merits of the various substantive parts of the Protocols remains a matter of individual appreciation. Some may feel particularly satisfied with the improvements brought about in the protection of medical services (a typical subject-matter of the “law of Geneva”), others with the strengthening of the ties between international human rights law and the humanitarian law of armed conflict, apparent from a number of articles in the Protocols. Yet, for the present writer, as for many others who closely followed the work of the Conference, its main significance lies in the elaboration and final adoption of a 4

5

6

For a report on the work of the Ad Hoc Committee up to the 3rd session of the Diplomatic Conference, as well as of the Lucerne and Lugano Conferences of government experts held under ICRC auspices in 1974 and 1976, respectively, see the author’s articles in 6 NYIL (1975) pp. 77-102 and 7 NYIL (1976) pp. 197-206. Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection of Victims of International Armed Conflicts; text in 17 IRRC (1977) pp. 3-87. Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Victims of Non-international Armed Conflicts, or Protocol II; ibid., pp. 89101. With respect to this term, see this author’s The Law of Warfare (1973) pp. 24-27.

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series of provisions falling within the domain of the law of warfare proper: methods and means of warfare, combatant and prisoner-of-war status, and, most particularly, the protection of the civilian population against the effects of warfare. At least in partial corroboration of this assessment, the following statement by the ICRC may be quoted here: “There is no doubt whatsoever that the greatest triumph of the Conference was the adoption of that part of Protocol I relating to the protection of civilians against the effects of war.” The titles of the Protocols are somewhat misleading in another respect as well: they seem to suggest a far greater similarity between the two instruments than they actually possess. Protocol I contains 102 articles with two annexes, Protocol II a mere 28 articles; Protocol I is divided into Parts, Sections and Chapters, while Protocol II is not; Protocol I not only enshrines a number of basic principles but elaborates these into detailed, precise rules, whereas Protocol II is virtually confined to a statement of principles. These are not differences of form alone; on the contrary, they are but the outward signs of the completely different conceptions which a great majority of the States participating in the Conference had of the two Protocols. The differences may be summed up in a few words: while international armed conflicts both traditionally and intrinsically are regarded as a legitimate concern of the international community and, hence, of international humanitarian law, the internal armed conflicts contemplated in Protocol II are seen as a matter first and foremost for the concern of the State in whose territory a conflict occurs. This may seem a quite reasonable point of departure; after all, there can be little doubt that while inter-State relations are the natural domain of international law, so, equally, are the internal affairs of a State the natural concern of that State. There is, however, a growing awareness that even the archetypal “internal affair” of the State, viz., the treatment of its own subjects, under certain conditions may become a legitimate concern of the international community. Evidence of this may be seen in the current attempts to engage international bodies in scrutinizing reported cases of gross violations, or consistent patterns of violation, of human rights in given States, as well as in the growing number of international instruments spelling out, in greater or lesser detail, the rights of man against the State. The inroad which all of this makes on the sovereignty of the State should not be overrated: few cases of alleged “gross violations” or “consistent patterns of violation” are brought to the attention of the international bodies concerned, and even when this occurs their powers to deal with such situations are so limited as to be seriously lacking in effectiveness. Although States will eagerly embrace the lofty principles laid down in such human rights instruments, few are prepared to take the all-important further step of vesting the instruments with true legal enforceability, whether before their own domestic courts or before an international judicial body. 7

ICRC Bulletin, No. 18-19, July-August 1977, p. 2.

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Chapter 9 1.1 The Making of Protocol II

At the Diplomatic Conference too, this tension between State sovereignty and international concern was very much apparent and indeed pervaded the discussions on Protocol II. A wide variety of positions could be discerned here, with what might be termed the Norwegian position at one extreme and the Canadian position at the other. From the very outset, the delegates of Norway, with Mr. Hans-Wilhelm Longva as their able spokesman, took the stand that an internal armed conflict, as a conflict between belligerent parties, in principle is no different than an international one and therefore, rare exceptions apart, ought to be governed by the same rules of international humanitarian law as apply in the latter case. The Canadians, with Mr. David Miller as their Head of Delegation, equally unhesitatingly opted for the opposite view, pleading with eloquence and tenacity the cause of a simple Protocol II that would not attempt to put the two sides on an equal footing and, generally, would in no way infringe the sovereignty of the State. Other delegations held intermediate positions, with those leaning towards the Norwegian position being found mainly among the Western countries, and those favouring the Canadian position among the Third World countries (which, evidently, were far more acutely aware of the actualities and potentialities of civil strife within their boundaries than were their Western counterparts). It may be recalled that the Geneva Conventions of 1949 already contain a common Article 3 applicable in situations of armed conflict occurring within the territory of a contracting State (without further definition) and laying down a few basic principles to be respected by both sides. To “develop and supplement” this Article (as Protocol II purports to do) further principles could be added to the ones enumerated, or the existing principles could be supplemented with more detailed, precise rules. In the course of the deliberations in Committees I-III, a combination of mutually reinforcing factors caused the latter tendency to prevail in many instances. For one thing, in this phase a simple majority sufficed for the adoption of articles; in practice, this often took the form of the articles being adopted by consensus whenever the minority realized that it would lose the vote anyway. For another, only a limited number of Third World countries took an active part in the work of the Committees, as against a much fuller representation on the part of the Western countries. As a result, and despite the repeated 8

These principles may be summed up as follows: humane treatment of “persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause”; prohibition, with respect to these persons, of violence to life and person, taking of hostages, outrages upon personal dignity, and the passing of sentences or the carrying out of executions “without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”; and the duty to collect and care for the wounded and the sick.

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warnings of the Canadian and other delegates, when the three Committees had finished their business and the articles they had adopted for Protocol II had been put together, the text that emerged constituted a far from simple affair; indeed, the text of many articles was identical, or at least closely similar, to that adopted for Protocol I. This situation, although perhaps gratifying to holders of the Norwegian point of view, appeared less satisfactory when it was realized that a two-thirds majority would be required for the adoption of Articles by the plenary Conference and that many Third World countries which had left their seats empty in the Committee rooms, could be expected to be represented at the plenary meetings. Protocol II, in short, was in grave danger of outright rejection. At this crucial stage of the Conference the Head of Delegation of Pakistan, Justice Hussain, took an initiative which drastically changed the picture; in cooperation with other, like-minded representatives he drew up a simplified version of Protocol II which left out most of the detailed rules and even some of the principles that had so much excited the displeasure of the governments concerned. He invited the Conference to adopt this text instead of the one that had emerged from the Committees. Procedurally, the resulting situation was awkward; the articles as adopted in Committee continued to represent the official text before the Conference, and, technically speaking, the Pakistan version amounted to nothing but a series of amendments to these Articles. The Presidential ruling that the Conference would consider the original draft of Protocol II “article by article, in conjunction with the simplified draft”, while entirely in keeping with this procedural position, nevertheless betrayed the widely recognized belief that the Committee text stood little chance of surviving and the Conference had better concentrate on the Pakistan alternative. There followed a curious procedure: the plenary “deleted by consensus” numerous articles contained in the official text and other ones were equally simply replaced by consensus by the Pakistan versions. Only in rare instances could a sufficient, i.e., two-thirds majority be found to retain provisions of the official text that had not been included in the Pakistan draft. There can be little doubt that Justice Hussain’s action saved Protocol II from ignominious defeat in the Conference. Yet, it remains to be seen how much was actually gained by the ultimate adoption by consensus of the Protocol in such a drastically simplified version. It is, first of all, still very much an open question how many States, especially among those of the Third World, will eventually see fit to ratify it. In this respect, the declarations made by a number of the representatives of these countries on the occasion of the adoption of the Protocol were far from promising; they had, so they said, not wished to oppose the consensus but would have preferred to abstain in a vote, and they felt that the Protocol as 9 10 11

The text may be found in Conf. document CDDH/402. The simplified version is contained in CDDH/427. CDDH/SR.49, 2 June 1977, p. 10.

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adopted still made undue inroads on the sovereignty of the State. This prompted the Turkish delegate to comment, in a written explanation of vote handed in afterwards, that “the consensus reached was impaired by the statements made by numerous delegations, to the extent that it might be construed as representing a ‘consensus through abstention’.” 1.2

Sovereignty vs. International Concern as Reflected in Protocol II

On the substantive side as well, Protocol II cuts a far from impressive figure; indeed, the overall impression it leaves is one of being paradoxically lop-sided. On the one hand, Article 1, defining its “material field of application”, does so in terms which seem to suggest that it is designed especially (or even exclusively) for full-fledged civil wars, such as the Spanish Civil War or the Nigeria/Biafra war. On the other hand, the remaining articles of the Protocol place so light a burden on the authorities in power, and take such great care to keep “authorities” and “rebels” on an unequal footing, as to render the resultant legal regime singularly inappropriate to a situation of civil war and, indeed, even far from sufficient for many lesser forms of internal armed conflict. An elaboration of this point may throw some further light on the character of Protocol II as envisaged by many of the delegates at the Diplomatic Conference. According to the terms of Article 1, Protocol II is designed to apply to armed conflicts taking place in the territory of a contracting Party “between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” For one thing, the requirement of participation of the official armed forces on one side in the conflict excludes a situation of even heavy fighting between opposing factions but without involving the armed forces of the State (a situation that persisted in the Lebanon for a long time). Then, the requirement of qualified territorial control on the part of the insurgent forces excludes all those situations where the insurgents, having no such control of territory, confine their activities to guerrilla type operations (hit-and-run actions, nightly raids into villages which in daytime are left to the inhabitants) which can equally amount to heavy fighting. Again, and as if all this were not enough, when Article 1 was brought up for discussion at the plenary meeting, a number of delegations, mostly though not exclusively from Latin-American countries, emphasized that in their view it was a matter solely for the State affected by a conflict to determine whether the conditions set out in Article 1 were fulfilled. Soothingly, Mr. Miller (Canada) remarked that the text of Article 1 “was based on a factual situation”; and Mr. Obradovic, the Yugoslav delegate who had chaired the working group of Committee I which had drafted the text of the Article, reminded 12

CDDH/SR.56, 8 June 1977, passim; the Turkish comment is in the Annex at p. 19.

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the meeting “that Article 1 represented a very fragile consensus reached only after lengthy consideration” and that, in the circumstances, “it would be extremely inadvisable to seek to interpret its provisions.” This could not however prevent the Colombian delegate from proposing an oral amendment along the above lines, which he only withdrew once it had become clear that it would not receive sufficient support. Even then, both he and other delegates reiterated their view that, as the delegate of Saudi Arabia had it, “… any definition of the terms of the article was solely the concern of the State on whose territory the armed conflict was taking place. Decision by any other country would constitute interference in the domestic affairs of the State concerned and an infringement of that State’s sovereignty.” This essentially negative approach to the idea of “international concern” with internal armed conflicts received even more direct expression in the explanations of vote made by certain delegations after the adoption of Article 1 (by a majority of 58 to 5 votes with 29 abstentions). To quote only the delegate of India, as one of the most outspoken opponents of Protocol II: he saw no need for it as “… all provisions of Protocol II are in one form or the other embodied in the national laws of my country. My delegation believes that the provisions of Protocol II will only militate against the sovereignty of States and will interfere in their domestic affairs. The internal law and order situations are the sole concern of sovereign States and these problems are to be dealt with according to the domestic laws of the country.” It is small consolation that, as Article 1 expressly states, Protocol II “which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949” does not modify the “existing conditions of application” of that Article. As explained earlier, these conditions of application (amounting to nothing but the existence of an “armed conflict”) by their very vagueness permit a much more flexible interpretation than do the terms of Article 1. In this connection it is gratifying to note that Jean Pictet, Vice-President of the ICRC, unequivocally stated in the plenary Conference that the ICRC intends to stick firmly to the text of common Article 3 as the basis for its initiatives in offering its services to the Parties to an armed conflict falling under that Article. Further evidence of the strong emphasis on State sovereignty and the corresponding rejection of the notion of international concern may be seen, for one thing, in the express prohibition to invoke the Protocol “for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State” (Art. 3(1)); and, for another, in the absence of any reference (except for the one contained in Art. 1(1)) to the insurgents as a party to the conflict or of rules for the treat13 14

CDDH/SR.49, 2 June 1977, p. 11 et seq. Ibid., Annex, p. 6.

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ment of insurgents in any manner distinct from other persons. In line with this, the Conference finally deleted a provision which would have instructed a court sentencing a person for no other crime than that of having taken part in hostilities, to “take into consideration, to the greatest possible extent, the fact that the accused respected the provisions of the present Protocol.” This provision would in no way have affected the power of the State to punish such persons for the fact of their participation, i.e., for an act of rebellion or some such crime against the security of the State, nor could it have been construed as even the beginning of an introduction of prisoner-of-war status into the regime of international humanitarian law for non-international armed conflicts. In the same vein, Article 3(2) goes out of its way to forestall any attempt to invoke the Protocol “as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs.” It seems difficult to conceive a more categorical refutation of the idea that an internal armed conflict might be a matter for international concern. After all this, it can hardly surprise that Protocol II contains nothing even remotely resembling the system of outside supervision provided for in the Geneva Conventions of 1949 for international armed conflicts (and somewhat improved in Protocol I). The original ICRC draft for Protocol II did indeed include a provision permitting both parties to the conflict to “call upon a body offering all guarantees of impartiality and efficacy, such as the International Committee of the Red Cross, to co-operate in the observance of the provisions of the present Protocol.” It added only as a closing sentence that such a body might also of its own accord “offer its services to the parties to the conflict” (draft Art. 39). This proposal seemed to place both parties to the conflict on an equal footing, at least as far as their relations with the ICRC were concerned, and accordingly it met with strong opposition in Committee I; its first (and most important) paragraph was rejected outright, and a vote was necessary to retain for the second paragraph a text which did no more than repeat, in terms identical to those contained in Article 3 common to the Geneva Conventions of 1949, that “the ICRC may offer its services to the parties to the conflict”. In the end, the Conference in plenary meeting deleted by consensus even this meagre remainder, relying precisely on the argument that it was identical to common Article 3 and was therefore redundant. After the vote, the representative of Iraq explained his real reasons (probably shared by several of his colleagues) for joining in the consensus; his country, 15

16

Committee I had adopted this provision by consensus as para. 5 of Art. 10 at its 63rd meeting; CDDH/I/SR.63, 4 June 1976, para. 74. At the plenary meeting, a separate vote was taken on this paragraph; there were 12 votes in favour, 26 against and 49 abstentions, so that the paragraph was deleted: CDDH/SR.50, 3 June 1977, pp. 9-12. CDDH/I/SR.63, 4 June 1976, para. 38; the vote was 34 in favour, 17 against, with 2 abstentions.

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he said, “while prepared to co-operate with the ICRC in its humanitarian work, could not accept any interference in its internal affairs of the kind implied by the offers of help mentioned” in the quoted text: such “politization of internal conflicts was highly undesirable.” One feels tempted to ask what is the more undesirable: the alleged “politization” of an internal armed conflict resulting from an offer of services by the ICRC, or the “politization” of the humanitarian initiatives of the ICRC by certain governments interpreting these as interference in their internal affairs. Be this as it may, enough has been said to demonstrate the immense difference, both in outward appearance and intrinsic characteristics, between Protocols I and II. One is a truly international instrument laying down rules of international humanitarian law governing international armed conflicts (including, it should be recalled, wars of national liberation as defined in Article 1(4) of this Protocol); the other is a document which, although moulded in the form of an international instrument complete with a ratification procedure and all its trappings, bears a far closer resemblance to a non-binding declaration of principles for non-international armed conflicts. A last quotation from the records of the final plenary meetings may bear out this analysis; in the words of the delegate of Sudan, “Protocol II entailed no international obligations, but represented a commitment by a State to its citizens for humanitarian purposes, without infringing its sovereignty.” From here on, most attention will go to Protocol I, with Protocol II being mentioned occasionally. Only selected topics will be dealt with, viz., combatants and civilians (section II), protection of the civilian population (section III), principles applicable between combatants (section IV) and general provisions (section V).

17 18

19

CDDH/SR.53, 4 June 1977, pp. 13-14. As the outcome of a long and often acrimonious debate, Committee I towards the end of the 1st session of the Conference adopted by 70 votes to 21, with 13 abstentions, a text for Art. 1(2) providing that the situations defined in Art. 2 common to the Geneva Conventions of 1949 “include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.” See 5 NYIL (1974) pp. 30-33, criticizing the decision and expressing the hope that “a reconsideration of the text of Article 1 as adopted by Committee I would still be possible.” (p. 33). Nothing of the kind happened; in the final session of the Conference, the plenary meeting adopted the text by 87 votes to one (Israel), with 11 abstentions mostly from Western countries (who in the meantime had “learned to live” with the idea); CDDH/SR.36, 24 May 1977, pp. 9-10. CDDH/SR.49, 2 June 1977, p. 18.

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Combatants and Civilians

In order to properly discharge its functions and fulfil the expectations which had been aroused when it was convened, the Diplomatic Conference was bound to resolve two issues of fundamental importance to the whole of the law of warfare: the distinction between civilians and combatants, and the degree of protection to be afforded the civilian population. This section is devoted to the first issue. Crucial to the matter of distinction between civilians and combatants is, of course, the question whether such a distinction ought to be made at all. No matter the obvious difficulty of maintaining such a distinction in practice, this most fundamental question is usually answered in the affirmative. Nor did the delegates at the Diplomatic Conference at any time cast doubt on the continued validity of the customary principle of distinction, which indeed constitutes a basic tenet of the existing law of warfare. The Article in Protocol I which for the first time gives authoritative expression to the principle (Art. 48 – “Basic rule”, being the opening Article of Part IV – “Civilian Population”) was adopted by Committee III in 1974 and by the plenary Conference in 1977, both times by consensus. It merits quotation in full: In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

In the original ICRC draft for this Article, a duty for the Parties to the conflict to “confine their operations to the destruction or weakening of the military resources of the adversary” had preceded the rule on distinction. This phrase, derived from the famous statement of principle in the preamble to the St. Petersburg Declaration of 1868 “that the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy”, was deleted by Committee III on the two-pronged argument that “language of this character was out of place in a convention relating to the pro20 21

CDDH/III/SR.10, 21 March 1974, para. 15; CDDH/SR.41, 26 May 1977, at pp. 2728. Declaration renouncing the use in war of “any projectile of a weight below 400 grammes, which is either explosive or charged with fulminating or inflammable substances.” For text, see: Schindler & Toman, The Laws of Armed Conflicts (1973), pp. 95-97. As the representative of the ICRC stated in Committee III, the quoted phrase “reaffirmed” the preambular paragraph of the St. Petersburg Declaration and the subsequent part of the proposed text “developed the same idea, since the concept of military objective had appeared only in the first quarter of the present century.” See CDDH/III/SR.2, 12 March 1974, para. 7.

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tection of the civilian population rather than the law of war in the strict sense and that ‘military resources’ might provide too wide a basis for attacks in wartime.” The former argument, and the one that interests us here, apparently distinguishes two concepts: one, the “law of war in the strict sense”, which governs the conduct of military operations, and the other, humanitarian law proper, which affords protection to certain categories of persons and objects against the dangers of war. While this may be a useful distinction for some purposes (e.g., to differentiate between the rules of military engagement and those relating to the treatment of prisoners of war) it becomes largely fictitious and, at all events, highly artificial when the question at issue is the protection of the civilian population; here, the rule prescribing that in war the military effort should be confined to “weakening the military forces of the enemy” really amounts to the same thing as the obligation to distinguish between civilians and combatants and between civilian objects and military objectives. Significantly, the closing phrase of Article 48 as adopted by the Conference “accordingly” requires belligerents to “direct their operations only against military objectives” – a requirement which differs from the St. Petersburg principle mainly in that it substitutes the modern and technically somewhat better defined term “military objectives” for the older phrase “military forces of the enemy”. 2.1

Humanitarian Considerations vs. Military Requirements

The above deletion of a clause which, it was thought, would introduce an element of “law of war” into a text which could and should remain purely humanitarian in character, is illustrative of a tendency which some delegations demonstrated throughout the Conference. From one point of view this was, of course, a most praiseworthy posture to take in a Conference the declared goal of which was the “reaffirmation and development” of humanitarian law. On the other hand, had it prevailed more often than it actually did, the outcome would have been a set of precepts wholly unrealistic from a military point of view. Fortunately, this did not materialize – although, to be sure, the military at the Conference felt at times that they were being saddled with more restrictions than they cared for. In the case of Article 48 in particular, the changes brought to the originally proposed text were, in the author’s view, more apparent than real, and did not significantly affect its substance. In this connection, it is worth noting that although the French delegation had “found the provisions of article [48] of Protocol I acceptable” at the time of the debate in Committee III, later on, when the plenary meeting had adopted the Article, this delegation completely reversed its position. In an explanation of vote, it made known its view that “Article [48] … is the first of a series of articles 22 23

CDDH/50: Report of Committee III, first session; para. 17. CDDH/III/SR.4, 13 March 1974, para. 2.

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which, after the manner of those in Part III [of Protocol I] relating to methods and means of combat, goes outside the specific context of humanitarian law for regulating the laws of war.” The statement went on to explain that “[although] this article was drafted with a humanitarian purpose in view, it has direct implications as regards a State’s organization and conduct of defence against an invader.” This led the French delegation to conclude that, had there been a vote, it would have abstained. Nor was this an isolated instance: the French steadfastly took this position whenever, during the concluding plenary phase of the Conference, an article was brought up for adoption which in their eyes “went beyond the strict confines of humanitarian law and in fact regulated the law of war.” It follows from what has been stated above that the present writer sympathises with the French in their evaluation of the true significance of the articles in question as provisions which, in setting definite limits to the freedom of action of States and armies in the organization and conduct of their military activities, fall within the province of the law of warfare rather than of humanitarian law taken in the narrow sense of the “law of Geneva”. Equally obviously, however, he does not share the conclusion implicit in their consistent abstentions that the articles ought not to have been adopted at all by a Conference whose purpose was confined to the “reaffirmation and development of international humanitarian law applicable in armed conflicts.” Unlike the French delegation, this writer’s considered opinion is that humanitarian law covers a wider field than the law of Geneva alone, and does in fact also encompass precisely those rules which, by proscribing the use of certain means and methods of warfare, seek to protect combatants from unnecessary suffering and (as in the case of Article 48 et seq.) the civilian population from the hazards of war. While, as noted above, the principle of distinction between civilians and combatants: is now firmly established in Protocol I, a different story has to be told about Protocol II. True, Committee III in 1974 adopted a text for the relevant Article of Protocol II which was identical to that contained in Article 48 of Protocol I. In plenary in 1977, however, this text when put to the vote failed to muster the required two-thirds majority. Instead, the Conference adopted Article 7 of the simplified Pakistan text, which in paragraph 1 provides the following “simplified” (and greatly watered down) version of the principle: “The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.” Although this clause evidently does not spell out the principle of distinction in so many words, it seems permissible to read into it an implicit recognition of the validity of this principle for internal 24 25

26

CDDH/SR.41, 26 May 1977, Annex p. 7. CDDH/SR.39, 25 May 1977, p. 10: explanation of vote relating to Art. 35, being the opening Article (“Basic Rules”) of Part III (“Methods and Means of Warfare; Combatant and Prisoner-of-war Status”). CDDH/50, Report of Committee III, 1st session; paras. 52-54.

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armed conflicts as well. Thus, the moderately positive conclusion seems warranted that, in the end, the Conference did not wholly go back on the declaration made as long ago as 1965 by the XXth International Conference of the Red Cross (Res. XXVIII) and solemnly reaffirmed in 1968 by the UN General Assembly (Res. 2444) that “all Governments and other authorities responsible for action in armed conflicts” should conform at least to the principle that “distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible”, a declaration which had expressly been designed to apply to international and non-international armed conflicts alike. 2.2 Where Lies the Dividing Line between Combatants and Civilians? Obviously, it is one thing to reaffirm the principle of distinction between civilians and combatants, and another to determine where the dividing-line lies between these two categories of persons. This latter question, which is of such a crucial nature, had proved to be a vexing one as long ago as 1874, the year of the Brussels Conference, and neither that Conference nor the Hague Peace Conference a quarter of a century later had seen their way to a satisfactory solution. True, Articles 1 and 2 of the Regulations on Land Warfare, which the Peace Conference adopted as an annex to the Hague Convention regarding the Laws and Customs of War on Land, spell out with apparent precision who will qualify as combatants; Article 1: the armies, as well as those militia and volunteer corps fulfilling all four of the following conditions: (1) being commanded by a person responsible for his subordinates; (2) having a fixed distinctive emblem recognizable at a distance; (3) carrying arms openly; and (4) conducting their operations in accordance with the laws and customs of war; Article 2: the levée en masse of the inhabitants of a non-occupied territory who “on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1”, on the condition, that is, that “they respect the laws and customs of war” – to which the Second Hague Peace Conference of 1907 added yet another requirement, viz., that “they carry arms openly”. This, indeed, was the extent of the agreement reached at the Brussels and Hague Conferences: more or less regular armies would qualify as 27

28

CDDH/SR.52, 6 June 1977, pp. 7-16. In the course of the discussion in plenary, the representative of the United States, George Aldrich, gave the following curious explanation why his delegation would vote against the Article: it “implied that rebels were allowed to choose their objectives” (ibid., p. 12). For the text of the above Resolutions, see Schindler & Toman, op. cit. note 21, Nos. 22 (p. 187) and 24 (p. 191). For a discussion of the significance of these Resolutions for internal armed conflicts, see the author’s “Applicability of Customary International Law in Non-international Armed Conflicts”, in A. Cassese (ed.). Current Problems of International Law (1975) pp. 267-285.

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combatants and also, as a concession on the part of the major Powers, the levée en masse in non-occupied territory. The Regulations remained utterly silent however on a phenomenon far more common than that rara avis: armed resistance in occupied territory; on this point, neither agreement nor even the beginning of a compromise had been forthcoming. At the root of this difference of opinion lay the vast discrepancy in political weight and military power among the European States, with the more powerful among them (Prussia, Russia) visualizing themselves more readily in the position of an occupying Power, and the weaker ones (Belgium, the Netherlands, Switzerland) in that of the occupied. Understandably, these two groups differed widely in their appreciation of armed resistance on the part of the population in such a situation. For the potential occupiers, the perpetrators of acts of resistance would be mere franc-tireurs, outlaws at the mercy of the occupying authorities. For the potential victims of occupation, these persons would be heroes fighting for the most noble of causes and, hence, entitled to be treated as combatants. These two opposing views remained irreconcilable at the time; hence the silence of the Regulations. Hence, too, the famous Martens clause in the preamble to the aforementioned Hague Convention, in which the contracting States openly acknowledged that it had proved impossible “to agree forthwith on provisions embracing all the circumstances which occur in practice.” However, they went on to explain, it was not their intention “that the cases not provided for should, for want of a written provision, be left to the arbitrary judgment of the military commanders.” On the contrary, in such cases “populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience.” For a long time matters stood at that, with the insufficiency of the Martens clause as a protective device for occupied populations being amply demonstrated in both the First and Second World Wars, the latter in particular. It was, indeed, the traumatic experiences of the Second World War which induced the States participating in the Diplomatic Conference of Geneva, 1949, to accept that members of “organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied”, would be entitled to prisoner-of-war status (as the status with which the Geneva Conventions were concerned) on the same footing as members of militias and volunteer corps. This implied that resistance fighters, in order to qualify, would be obliged to fulfil the four conditions set out in Article 1 of the Hague Regulations

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Schindler & Toman, op. cit. note 21, Nos. 6-7, at p. 64. The English translation of the 1899 text differs slightly from the one usually quoted from the identical 1907 text; loc. cit., where both texts are reproduced side by side.

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and repeated in the relevant Articles of the Geneva Conventions. In the light of past experience this could hardly have been considered a satisfactory solution; it proved even less so in subsequent armed conflicts, many of them of the guerrilla type, in which irregular fighters frequently resorted to tactics entirely at variance with one or other of the aforementioned conditions. It was therefore inevitable that the position of irregular fighters would once again become a bone of contention in the new round of discussions on the “reaffirmation and development” of humanitarian law. The setting, while very similar in one respect (which is further discussed below) was strikingly different in another. At the Brussels and Hague Conferences, the European States had discussed the problems of occupation and resistance as-it-were in the abstract. True, the memory of the Franco-German war was still fresh, and moreover, as pointed out above, the weaker States were constantly aware of their position of relative inferiority. Yet, it was not existing but potential, hypothetical situations which the States participating in these Conferences had wished (and failed) to regulate. At the Diplomatic Conference of 1974-1977, on the other hand, the topicality of the “struggle against colonialism, alien occupation and racism” loomed large over the discussions. Indeed, so dominant was the influence exerted by this topical issue on the minds of the participants in the debate that many of them, especially among those from Third World countries, visualized themselves not so much as lawmakers for hypothetical future cases, but rather as pursuers of their governments’ constant policy of “support for the just struggle of peoples that are still colonized and oppressed” or, even more directly, of “the peoples of Palestine and Southern Africa”. The immediate, concrete and strictly limited goal sought by this group of participants was simply to obtain formal recognition, in solemn treaty form, of what the UN General Assembly had ever since 1968 consistently affirmed, viz., that “freedom fighters in southern Africa and in colonial Territories, when captured”, had a right “to be treated as Prisoners of War under the Geneva Conventions of 1949.” Obtaining this recognition would constitute the second step towards the realization of their goal, the first step having been the adoption by the Diplomatic Conference of Article 1, Protocol I, recognizing that “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self30

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Convention I (the Wounded and Sick Convention), Art. 13(2); Convention II (the Wounded, Sick and Shipwrecked Convention), Art. 13(2); Convention III (the Prisoners of War Convention) Art. 4A(2). CDDH/SR.41, 26 May 1977, Annex p. 9: written explanation of vote on the part of the delegation of Mauritania. Ibid., p. 19: explanation of vote by the delegate of Mozambique. Res. 2446 (XXIII), confirming Res. XXIII of the International Conference on Human Rights, Teheran 1968.

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determination” are international armed conflicts. For the sake of completeness, it should be emphasized once again that this Article, far from covering every imaginable struggle for self-determination in the broadest sense, is confined to those cases falling within the restricted meaning attributed to that notion in the Friendly Relations Resolution. The Article does not apply in a situation of armed conflicts within the territory of a single State that is being waged between the authorities in power and an insurgent party presenting itself as a “liberation front” fighting for the “self-determination” of a people living within the territory of that State, where the State, in the terms of the said Resolution, is conducting itself “in compliance with the principle’ of equal rights and self-determination of peoples as described above [i.e., in the preceding paragraphs of the Resolution] and [is] thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.” Translated into terms of practical politics, this amounts to saying that the struggles for self-determination envisaged in the Article are solely those, referred to a moment ago, of “the peoples of Palestine and Southern Africa”. 2.3

Status and/or Treatment of Irregular Fighters

While, thus, the “second step” pursued by this group of participants did not go beyond the short-term aspiration of adding yet another minor victory to the many already won in the battle against today’s black sheep: “colonial domination, alien occupation and racist regimes”, from another point of view it bore a striking resemblance to the aim which the small Powers had pursued at the Brussels and Hague Conferences, viz., to obtain general recognition that the members of an occupied population resorting to armed resistance were fighting a just war, and on that account alone would qualify as combatants. It should be emphasized that with respect to today’s “liberation fighters” as well, the claim was that the just cause for which they were fighting was inherently sufficient to render them eligible for prisoner-of-war status, wholly irrespective of whether they fulfilled or could fulfil - the technical conditions for such status. In this respect, therefore, history has repeated itself, and the concept of bellum justum was once again set against the generally accepted doctrine that only those who fulfil certain named conditions will qualify as combatants (and, consequently, as prisoners of war). Draft Protocol I as submitted to the Conference by the ICRC contained an Article 42 entitled “New category of prisoners of war” which, far from honouring the bellum justum thesis, provided a reformulation of the traditional conditions, with one noteworthy innovation: those wishing to qualify for prisoner-of-war

34

Res. 2625 (XXV), in the section on “The Principle of Equal Rights and Self-determination of Peoples”.

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status would have to “distinguish themselves from the civilian population in military operations.” This condition, designed as it was to replace the old and rather too specific ones of wearing a distinctive sign and carrying arms openly, at the same time could not fail to bring into prominent relief what was really the heart of the matter, viz., that the choice was once again, as it had been in the past, between (a modicum of ) protection for the civilian population and (full) protection for a particular category of irregular fighters. The ensuing debate at the Conference was long, complicated, confusing and at times acrimonious. Yet, throughout the deliberations the political will persisted in all quarters (though not perhaps shared by each and every member of these respective “quarters”) to bring matters to a successful conclusion. For the ultimate success of the enterprise one man deserves special credit: Mr. George Aldrich, Deputy Legal Adviser at the U.S. Department of State, Head of the U.S. delegation at the Conference and Rapporteur of Committee III. In this last capacity he chaired the meetings of its working group set up to deal with the real business at hand; and in the discussions on Article 42 and related articles, as in those on other articles allotted to the Committee, his intelligence, grasp of the subjectmatter, constructive approach and leadership proved invaluable assets in the delicate task of sorting out the problems and overcoming one by one, with dogged tenacity, the many obstacles that constantly appeared on the way. Through all this he was and remained a convinced partisan of the doctrine requiring the fulfilment of certain conditions as a prerequisite for combatant (and prisoner-of-war) status. His main opponent in this, and an equally tenacious negotiator, was the Vietnamese delegate Mr. Nguyen Van Luu (who, incidentally, like Mr. Aldrich had taken part in the Paris peace talks between the United States and (then) North Vietnam). Although Mr. Van Luu’s comments were usually highly coloured and at times decidedly vitriolic, fortunately for the outcome of the debate, he too was bent on achieving a widely acceptable result - this in line, of course, with the political goal sought by the group of delegates of which he was such an outstanding member. He was thus willing to go for a compromise when a one hundred per cent victory appeared unattainable. The inevitable result was indeed a compromise and, fortunately, not a bad one at that. A first major step in the right direction was taken when it was decided to expand the concept of the Article immediately preceding Article 42 in the ICRC draft. As proposed by the ICRC, draft Article 41 dealt solely with the requirement that armed forces be organized and subject to discipline. The Committee maintained these elements but incorporated them into a text which also provided 35 36

The ICRC proposal treated the matter as one of prisoner-of-war rather than combatant status. For an account of an incident involving Mr. Van Luu and the present writer, as Rapporteur of an experts’ conference on conventional weapons, see 6 NYIL (1975) at pp. 87-88.

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a definition of “armed forces”. As drafted by the Committee, the text read as follows: The armed forces of a party to the conflict consist of all organized armed forces, groups, and units which are under a command responsible to that party for the conduct of its subordinates, even if that party is represented by a government or an authority not recognized by an adverse party. Such armed forces shall be subject to an internal disciplinary system, which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict. These rules include those established by applicable treaties, including the Conventions and this Protocol, and all other generally recognized rules of international law.

The Committee followed this up with a second paragraph, which likewise merits quotation in full: “Members of the armed forces of a party to the conflict (other than medical personnel and chaplains covered by article 33 of the Third Convention) are combatants, that is, they have the right to participate directly in hostilities.” With the adoption by consensus of these two paragraphs (and a third one which is not relevant here) Committee III had decided a number of crucially important issues at a stroke. It had established the principle that a single standard would apply to all armed forces, whether regular or irregular, and that, hence, no special law would be created for the latter. It had placed beyond dispute that those wishing to qualify as “armed forces” must fulfil certain specified conditions. It had made explicit what in Article 1 of the Hague Regulations had been an implied presumption at best: viz., that regular armed forces too are required to fulfil these conditions. It had defined the term “combatant” in such a manner “that it proved possible to avoid terms such as ‘lawful combatant’, ‘legitimate combatant’, and ‘privileged combatant’”, terms which had given rise to much controversy in the past. It had reaffirmed the principle, implicit in Article 1 of the Hague Regulations, that those qualifying as combatants “have the right to participate directly in hostilities” and, thus, cannot be punished for the sole fact of having so participated (although they can be punished for violations of the “rules of international law applicable in armed conflict” committed in the course 37 38

39

In its final drafting, the word “party” is spelled throughout the Article with a capital “P”. CDDH/236/Rev. 1: Report of Committee III, 3rd session, paras. 41-45. The third paragraph deals with the delicate problem that arises when “a party to the conflict incorporates a paramilitary or armed law enforcement agency into its armed forces”: it then “shall so notify the other parties to the conflict.” In the final version of Protocol I this Article figures as Art. 43. CDDH/III/361/Add. 2, p. 2: report on the discussions concerning Art. 42, held in the working group during the third session.

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of their participation). And it had listed three conditions for combatant status: organization, responsible command, and discipline, with the last requirement amounting to a rather striking modification of the traditional one of “conducting operations in accordance with the laws and customs of war” and at the same time providing an interesting, at least partial definition of “the rules of international law applicable in armed conflict”, a phrase which, as the Committee report does not fail to note, “occurs in a number of articles” of the Protocol. The above Article, when subsequently brought up for decision in the final round of plenary meetings of the Conference, was adopted once again by consensus and, indeed, without as much as a word of comment. In the definitive version of Protocol I, it figures as Article 43 (“Armed forces”). 2.4 When and How to Distinguish Oneself from Civilians? There remained the most delicate issue of all: viz., the requirement for combatants to distinguish themselves from civilians. It is a most striking fact that this does not figure among the conditions for combatant status listed in Article 43: to what extent would combatants be required to maintain the distinction nonetheless, and what would be the consequences of non-compliance? In Committee III, the debate on these questions predictably took up a great amount of time and energy. Even during the second session, in the course of the introductory debate on draft Article 42, many delegates had dwelt at length on the issues involved. Then, during the third session, the working group of Committee III spent some weeks of difficult negotiations trying to find acceptable solutions for the problems at issue. By the end of that session the working group had indeed worked out a compromise text which it felt it could submit to the Committee. It soon became apparent, however, that the time was not yet ripe for the matter to be decided by that body: so much resistance to the proposed text still persisted, especially among the Western and Latin-American delegations, that it was considered the wiser course not to press for a decision at that juncture and to postpone this until the following session. By the time of that (fourth) session, most of these delegations, although still far from satisfied with the text elaborated in the working group, had nevertheless 40 41

42 43 44

CDDH/236/Rev. 1: Report of Committee III, 3rd session, para. 43. CDDH/SR.39, 25 May 1977, p. 23; the delegation of Israel was the only one to refer to the Article at all, in a written explanation of vote handed in afterwards which lays stress on the need for effective compliance with the rules of international law applicable in armed conflict; ibid., Annex, p. 3. The statements made at the time were reproduced as a separate Conference document: CDDH/SR.33-36, Annex. CDDH/III/361/Add. 2: Report of Committee III on the deliberations of the working group on draft Article 42. CDDH/236/Rev. 1: Report of Committee III, 3rd session, paras. 83-94.

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realized that a more acceptable compromise solution simply would not be forthcoming; hence, they were grudgingly prepared to resign themselves to the inevitable. Yet, to adopt the Article by consensus appeared even then to be asking too much. When the Chairman of Committee III appealed to the members to do this, the representative of Israel formally opposed this procedure and requested a vote; thereupon, the Algerian representative requested that the vote be taken by roll-call. The result of the vote was an overwhelming majority in favour of the Article. It was adopted by 66 votes to 2 (Brazil and Israel) with 18 abstentions, mostly from Western and Latin-American delegations. Some weeks later, in the plenary meeting, this procedure virtually repeated itself. Once again, the Israeli delegation “was unable to accept the consensus on Article 42 and requested that it be put to the vote.” This time the delegate of Madagascar “asked that the vote should be taken by roll-call.” The outcome of the vote was an even more pronounced majority in favour of the Article: 73 to 1 (Israel) with 21 abstentions. So adopted, it figures as Article 44 (“Combatants and prisoners of war”) in Protocol I. After this brief description of the course of events with respect to the Article in Committee and in the plenary Conference, it is appropriate to revert to the substantive side of the matter and the questions raised above. The answers to these questions lie in paragraphs 3-7 of Article 44. First, in the opening sentence of paragraph 3 the principle of distinction emerges once again triumphant: In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack.

So formulated, the principle was acceptable to all; with respect to regular armed forces it merely seemed to reaffirm the self-evident, whereas so far as irregular armed forces were concerned the restriction to the period of engagement “ in an attack or in a military operation preparatory to an attack”, although not very precise in itself, at least brought out clearly that the impossible would not be required of these forces; notably, they would be under no obligation to wear (in the words of Article 1 of the Hague Regulations) “a fixed distinctive emblem recognizable at a distance” even when not in any manner directly engaged in such military activities. Yet, this general acceptance could not mask the fact that different interpretations were placed upon the significance of the agreed text by various participants in the debate. Thus, Mr. Van Luu, the Vietnamese delegate, did not cease to repeat that combatants, generally speaking, are obliged to distinguish themselves from the civilian population. He unmistakably meant this to apply 45 46

CDDH/III/SR.55, 22 April 1977, pp. 2-3. CDDH/SR.40, 26 May 1977, pp. 2-4.

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in particular to those most typical of war criminals, the aggressor forces of the imperialist (capitalist, colonial, racist) Powers. In his line of thinking, the principle would, however, have to suffer an exception in favour of the valiant defenders of the peoples falling victim to these vile aggressors and struggling for their selfdetermination: these noble men and women could not, without committing suicide, walk about in uniform. More fundamentally, since the whole populace was really the defending force, it would simply be wrong for one part of the population to be obliged to distinguish itself from the rest, on the sole ground that it happened to be actively engaged in the hostilities. Patiently yet unflinchingly, Mr. Aldrich and his supporters retorted that the effect of such a sweeping exemption would be to put in jeopardy precisely those populations which the Vietnamese delegate and his friends were seeking to protect. They therefore refused to accept the idea of a general exemption in favour of guerrilla forces fighting for self-determination (or for any other cause, for that matter). They were willing, on the other hand, to concede that the armed forces in question could not be expected to distinguish themselves at all times and in all circumstances in the same manner as regular armed forces are expected to do. In the end, this proved to be the middle ground on which a compromise could be found, although (as related above) it took the working group of Committee III no end of trouble, and the better part of the third session, to work out a form of words acceptable to both sides. This formula, which constitutes the second sentence of the third paragraph of Article 44, reads as follows: Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly: (a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.

In a third and last sentence, it is placed beyond question that “acts which comply with the requirements of this paragraph shall not be considered as perfidious” within the meaning attached to that notion in the relevant Article of the Protocol. This is an interesting text in more than one respect. First, the reference to the “nature of the hostilities” makes clear that the exemption is meant to apply in special situations only (and not, for instance, to irregular armed forces generally). The decisive element is, furthermore, the nature of the hostilities, rather than the cause of the conflict. The Article does not spell out which types of hostilities are 47

Art. 37 deals with the matter of perfidy.

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considered to be of such a nature as to render the exemption applicable, nor do the quoted words have a very clear “ordinary meaning”, not even when viewed “in their context and in the light of the object and purpose of the treaty”: the only thing that emerges with sufficient clarity is that the “nature of the hostilities” must be such as to lead to situations “in which a combatant cannot distinguish himself and retain a chance of success.”. For the rest, one might hope to gain some further insight into the meaning of the phrase from the “subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” (although, as will be explained below, not too much should be expected of this means of interpretation in the present instance) and of course, to the extent that this is permissible, from the “preparatory work” (Articles 31 and 32 of the Vienna Convention on the Law of Treaties). In the present case the travaux préparatoires do indeed bring to light a certain general understanding about the construction to be placed upon the quoted phrase; in the explanations of vote given subsequent to the adoption of (then) Article 42 by Committee III and, somewhat later, in the plenary Conference, there was a marked unity of opinion that the situations envisaged in the second sentence of paragraph 3 can arise solely in occupied territory and in the case of wars of national liberation (as defined earlier) – precisely the two types of situation which inspired the debate from the very outset. A second aspect concerns the degree to which the requirement should be relaxed for those combatants who find themselves in a situation of the above kind. The normal requirement of distinction from the civilian population is set aside, and the quoted sentence substitutes for this the lesser requirement of carrying arms openly during the periods of time indicated under (a) and (b) above. The reasoning behind this is that, were this more restricted requirement to be abandoned too, the combatants in question could with impunity carry their use of civilian attire so far as to “feign civilian, non-combatant status” even in carrying out an attack, a mode of conduct which the Conference has rightly denounced as perfidious. Of the two periods of time mentioned, the first (“during each military engagement”) does not seem to require any further clarification. In contrast, it may not be altogether an easy matter to determine when a combatant is considered to be “visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.” Two factors are decisive here: engagement in a “military deployment”, and visibility to the adversary. Each of these terms was given widely divergent interpretations in the course of the proceedings. Thus, while the delegate of the Federal Republic of Germany said that his delegation, which had introduced the term “military 48 49 50

See the report of Committee III, referred to in note 43 supra. CDDH/III/SR.55-56, 22 April 1977; CDDH/SR.40-41, 26 May 1977. See note 47 supra.

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deployment” in the debate as a military term of art, understood it to mean “any uninterrupted tactical movement towards a place from which an attack was to be launched”, the Egyptian delegate attached to it the far more restricted meaning of “the last step in the immediate and direct preparation for an attack, when the combatants were taking up their firing positions.” Similarly, visibility was interpreted by some (e.g., the delegate of the United Kingdom) in the wide sense of being under observation, including observation with electronic devices, whereas others, among them the delegate of Syria, believed the term to imply “that the combatant knew or ought to know that he was visible to the enemy.” Even more clearly, the representative of the Palestine Liberation Organization construed it “to mean visible to the naked eye, since recourse to electronic devices would divest the article of its value and undermine its very purpose.” All these divergences of opinion and interpretation remained unresolved in Committee III. Likewise, at the stage of the plenary meetings of the Conference, no further clarification emerged from the explanations of vote, which merely repeated the positions taken earlier on. In these circumstances, is it then perhaps the case that the “ordinary meaning” of the above terms puts one of the sides unequivocally in the right? Let us take a brief look at the word “visible”. In the eyes of many a layman, this word may indeed at first glance convey the “ordinary meaning” of being “visible to the naked eye”. But would one be justified in simply overlooking the use of that perfectly ordinary device, the field glass? And what should be the attitude to infra-red field glasses? Is it too fantastic a step from this to the even more sophisticated electronic observation devices developed and deployed in recent times? Understandably, those who have such devices at their disposal will feel inclined to subscribe to the British view that “visible” means “being under observation” in the widest possible sense. On the other hand, it would be difficult to deny some merit to the Palestinian argument that to count even electronic observation devices among the means rendering a combatant “visible to the adversary” would be tantamount to frustrating the very purpose of the Article – if one accepts that this purpose is to extend maximum protection to the combatants in question (and, thus, maximum risk to their opponents). There is, however, another side to the matter. Those who participated in the above debate apparently sought to interpret the word “visible” not in its context but as an isolated term. It is suggested that, taking into account the context in which the term is employed, the real question at issue is whether a man is visible as a person who does, or does not, carry arms openly. This considerably narrows the range of possible interpretations. Electronic observation devices do not yield this type of information, and neither do the infra-red field glasses most commonly in use at the present time. This is to say that the British position is untenable and the only remaining question is whether the term should be taken 51 52

CDDH/III/SR.55-56, 22 April 1977. CDDH/SR.40-41, 26 May 1977.

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to embrace, besides visibility to the naked eye, the type of visibility which results from using an ordinary field glass. The answer to this more limited question may safely be left to other experts. At all events, they will still find themselves confronted with the question from what moment our man must be “visible”: when precisely must he be considered to be “engaged in a military deployment”? Here, no contextual considerations present themselves to the present writer that would help solve the riddle, and it seems predictable that interpretation at least of this term will continue to vary according to the interests each side in the conflict has at stake. The “armed combatant” who, finding himself in a situation as envisaged in the second sentence of paragraph 3 of Article 44, acts in compliance with the requirements set out there, “shall retain his status as a combatant” and his “acts … shall not be considered as perfidious”, says the Article. What will be the position of the man or woman who does not so comply? For a full understanding of the answer to this question, reference should be made in the first place to the general system embodied in the first two paragraphs of Article 44: while paragraph 1 lays down the basic rule that “Any combatant, as defined in Article 43, who falls into the power of an adverse Party shall be a prisoner of war”, paragraph 2 provides that “violations of [the rules of international law applicable in armed conflicts] shall not deprive a combatant of his right to be a combatant or, if he falls into the power of an adverse Party, of his right to be a prisoner of war, except as provided in paragraphs 3 and 4.” It should be emphasized immediately that paragraphs 3 and 4 do not attach any special consequences to a violation of the general rule of distinction from the civilian population by a common combatant, including the not-so-common member of a militia or volunteer corps as referred to in Article 1 of the Hague Regulations. To this extent, the new system probably deviates from, and at all events represents a marked improvement over, the traditional one of the Hague Regulations. Under that traditional system, the conditions for combatant status are addressed to “militia and volunteer corps”, not to individual members of such units. This has led in the past to considerable debate as to whether an isolated act of non-compliance with the requirements of Article 1 of the Hague Regulations should entail loss of status for the individual perpetrator, or whether this consequence should arise solely in the event of massive non-compliance, and then for the militia or volunteer corps as a whole. Articles 43 and 44 of Protocol I now bring clarity in this matter. Not only these famous militia and volunteer corps, but all organized armed forces must henceforth comply with the requirements listed in Article 43; these do not include having a fixed distinctive emblem nor carrying arms openly; the Article, moreover, is so formulated as to dispel all doubt that the organized units and not their individual members are the addressees of these requirements. In contrast, Article 44(1) places the obligation to distinguish oneself from the civilian population on each combatant individually; non-com-

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pliance, e.g., by neither having a distinctive emblem nor carrying arms openly, is punishable as a war crime, but does not entail any loss of status. 2.5

An Exceptional Regime for Irregular Fighters

It is only in relation to the special situations contemplated in the second sentence of paragraph 3 that this general system is abandoned for an exceptional regime. The first exception is found, although in somewhat concealed form, in the quoted sentence: by laying down that a combatant who cannot distinguish himself from the civilian population in the usual manner shall nevertheless “retain his status as a combatant” provided that he “carries his arms openly” during the periods of time indicated in the paragraph, it implies at the same time that a person who fails to comply with this minimum requirement forfeits his combatant status – that is, in the terms of Article 43(2), his “right to participate directly in hostilities.” Put another way, his very participation in hostilities will then amount to a punishable act, and so, of course, will his “feigning of civilian, non-combatant status”, an act which, as mentioned before, is qualified as perfidy elsewhere in the Protocol. The other consequence of non-compliance, which follows more or less logically from the first one, is forfeiture of prisoner-of-war status. However, although this does indeed form the point of departure, paragraph 4 is couched in language designed to remove much of its sting. It reads as follows: A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offences he has committed. First, as the paragraph clearly spells out, the consequence of forfeiture of prisoner-of-war status shall arise only when a combatant falls into enemy hands “while failing to meet the requirements…” This point deserves some emphasis: although the act committed by the combatant in question is and remains a punishable act irrespective of whether he is captured then and there, the particular sanction of loss of status becomes operative only in the event that he is so captured. This restriction is expressly confirmed in paragraph 5, laying down that “Any combatant who falls into the power of an adverse Party while not engaged in an attack or in a military operation preparatory to an attack shall not forfeit his rights to be a combatant and a prisoner of war by virtue of his prior activities.” Paragraph 4 furthermore holds out to our non-prisoner of war “protections equivalent … to those accorded to prisoners of war …” This is a most peculiar 53

Art. 37; see note 47 supra.

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provision in that, at least on the face of it, it comes very close to giving back with one hand what was taken with the other. The report of Committee III describes its effect as follows: In essence, paragraph 4 provides a separate, but equal, status for combatants who are captured while failing to observe even the minimal rule of distinction set forth in the second sentence of paragraph 3. They are not to be prisoners of war (and under paragraph 3, they will have forfeited their combatant status), but they shall benefit from procedural and substantive protections equivalent to those accorded prisoners of war by the Third Convention and the Protocol.

Neither paragraph 4 nor the above paragraph of the Committee report specifies any further which “procedural and substantive protections” shall be accorded these persons. Must they be kept in camps “equivalent to” prisoner-of-war camps; supplied with “equivalent” food and clothing; granted “equivalent” working conditions? Will they be entitled to send and receive letters and cards, to receive relief, to address requests and complaints to the representatives of Protecting Powers or the ICRC in a manner “equivalent” to the comparable rights of prisoners of war? All these matters are left entirely in the dark, witness the statement of the delegate of Australia in Committee III: “His delegation had had considerable difficulty in identifying the precise treatment to be accorded to such a person.” Later on, when the plenary Conference had adopted the Article, the same delegate in explaining the vote of his delegation drew at least one pertinent conclusion from paragraph 4, viz., that the “status after capture did not provide any inducement to comply with the provisions of paragraph 3.” He continued: “The sanction designed to induce a guerrilla to comply with Article [44] was liability to trial and punishment for an offence under the applicable laws of war or criminal law – a liability arising immediately upon loss of combatant status by reason of non-compliance with paragraph 3.” The last-quoted sentence really points up the crux of the matter. The extra sanction of loss of status (besides the generally applicable one of liability to trial and punishment for an act of perfidy) is designed to accomplish two things. First, deterring the guerrilla fighter concerned from continuing to feign civilian status up to the very moment of actually engaging the enemy. Secondly, in the not entirely improbable event that the deterrence fails, enabling the capturing Power to put the guerrilla fighter on trial as a non-prisoner of war, that is, as an ordinary civilian who has committed a punishable act (which can be either the crime of directly participating in hostilities without being entitled to do so, or another crime under that Power’s criminal law). The importance of this latter consequence 54 55 56

CDDH/III/361/Add.2. CDDH/III/SR.55, 22 April 1977, para. 54. CDDH/SR.40, 26 May 1977, pp. 12-13.

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lies in the consideration that, although it is permissible under the Third Geneva Convention and the Protocol to put prisoners of war on trial while an armed conflict is in progress, such trials are rare and, indeed, are usually avoided for fear of repercussions from the side of the adverse Party. In the situations contemplated in the second sentence of paragraph 3, however, and notably in the event of an armed occupation, it would be intolerable for an occupying Power to have to forgo the trial and punishment of the (probably) numerous resistance fighters which it captured while they were not complying with the requirements of that sentence. Paragraph 4 serves to safeguard this weighty interest of occupying Powers, and once this is accomplished, it matters little that such Powers are then obliged to extend to the persons in question “protections equivalent in all respects to those accorded to prisoners of war”. We thus find in Article 44, paragraphs 3 and 4, a carefully balanced exceptional regime for guerrilla fighters in special situations. Assuming that the delegates to the Conference were right, the applicability of the regime is restricted exclusively to resistance fighters in occupied territory and liberation fighters in certain well-defined struggles for self-determination. The importance of the new regime, especially for the latter category of guerrilla fighters, cannot be better demonstrated than by quoting once again Mr. Nguyen Van Luu, the delegate of Vietnam, who said in his explanation of vote in the plenary meeting that, the adoption of Article [44] by a large majority in a plenary meeting of the Conference was a great satisfaction to those who wished to develop international humanitarian law. Article 1(4) changed the legal status of combatants who were fighting for their social and political emancipation. Article [44] gave specific expression to their new status, especially if they fell into the power of an adverse Party. Formerly such combatants had fought without distinguishing themselves from the civilian population. In accordance with paragraph 3 of Article [44], combatants were now obliged to distinguish themselves from the civilian population while engaged in an attack or in a military operation preparatory to an attack. They were now to be treated as prisoners of war under the Third Geneva Convention of 1949.

Ironically, the newly adopted Articles of Protocol I will almost certainly fail to achieve this result, at least from a strictly technical point of view, precisely with respect to those “combatants fighting for their social and political emancipation” which Mr. Van Luu had in mind. The rule that these combatants should be treated as prisoners of war, although repeatedly proclaimed in resolutions of the General Assembly, can hardly be said to have acquired the status of a rule of customary law prior to the adoption of Articles 43 and 44 by the Diplomatic Conference. It would seem hard to deny that it therefore constitutes a new rule 57

CDDH/SR.41, 26 May 1977, p. 17; italics supplied.

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of international humanitarian law, which will become binding upon those States, and those States alone, which ratify the Protocol. Now, the chances that the States most immediately addressed by the new rule will indeed proceed to ratify it seem remote to the point of being negligible. Therefore, technically speaking, those States will not become bound by the new rule. The irony of the matter will then be that those delegations who so fervently sought to achieve the adoption of these Articles by the Diplomatic Conference will have exerted themselves – not entirely in vain, but – for a totally different situation than the one they had in mind; indeed, their exertions will have contributed greatly to bringing about a solution for that most vexing problem of the traditional law of war, viz., the position of resistance fighters in occupied territory. The above is true in a technical sense, and from a traditional Western point of view. There is, of course, an altogether different school of thought which maintains that law, even on the international plane, is what the (international) community says it is. According to this line of thinking (which its adherents usually apply somewhat selectively to those situations which they seek to subject to a certain international regime, while in other situations preferring to rely on the sovereignty of the State to ward off any undesirable encroachments upon their freedom of action), the adoption by the Diplomatic Conference of a formal treaty provision embodying the rule that liberation fighters engaged in struggles for self-determination must be accorded prisoner-of-war status will suffice to lend this rule that last bit of authoritative power which the repeated resolutions and declarations of the General Assembly, no matter how authoritative in themselves, still left to be desired. Put another way, any lack of ratification by particular States will render the rule no less binding on the international community as a whole, including of course those few non-ratifying States. It must be admitted that lack of ratification by certain States will not affect the power of the organized international community to invoke the rule as a valid norm of international humanitarian law, expressly recognized even by the Diplomatic Conference, and to pass resolutions condemning failure to respect it as an international crime. Such resolutions will obviously be of limited effectiveness. In this respect, it may be a consoling thought, especially to those who adhere to the more traditional line of thinking, that the new rule may at any rate be expected to acquire the even greater effectiveness of a treaty rule accepted as such by the States concerned, in precisely those situations indicated above in which an occupying Power, Party to the Protocol, finds itself confronted by armed resistance from the inhabitants of the territory it is occupying. Besides the articles discussed above, the Conference adopted two further articles that should be briefly mentioned here. One (Art. 46), under the heading of “Spies”, deals with the “member of the armed forces of a Party to the conflict” who, either, engages in espionage and then “may be treated as a spy” (para. 1), or “gathers or attempts to gather information” in enemy territory while “he is in the uniform of his armed forces” and then “shall not be considered as engaging in

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espionage” (para. 2). While this simply confirms the existing law on the subject as laid down in Article 29 of the Hague Regulations, paragraph 3 brings clarity to a matter which thus far had remained obscure, viz., the position of the “member of the armed forces of a Party to the conflict who is a resident of territory occupied by an adverse Party and who, on behalf of the Party on which he depends, gathers or attempts to gather information of military value within that territory”: in short, the resistance fighter who counts the tanks passing under his windows. This activity, the paragraph says, does not constitute espionage unless it is done “through an act of false pretences or deliberately in a clandestine manner.” The resident member who does engage in espionage may be treated as a spy only when he is captured while so engaged. This is a special case of the existing general rule to the effect that no one who has engaged in an act of espionage may be treated as a spy unless he is captured before he has rejoined the armed forces to which he belongs. This general rule finds further confirmation in paragraph 4, which makes it applicable to the member of the armed forces who, not being a resident of territory occupied by an adverse Party, has engaged in espionage in that territory. The other article (47) lays down that “A mercenary shall not have the rights to be a combatant or a prisoner of war”. This provision was included in the Protocol mainly at the urging of the African States, and in the face of objections from many Western delegations. It might prove to have done considerable harm to the cause of humanitarian law, as it runs counter to the basic rule that, in principle, all those who take an active part in hostilities should be treated equally and without discrimination on the basis of their motives for joining in the fighting. Fortunately, the second paragraph of the article provides a definition of “mercenary” the effect of which is to remove much of the danger inherent in the first paragraph. One of the six elements cumulatively listed in the definition is the requirement that the person in question “is not a member of the armed forces of a Party to the conflict.” In other words, only those persons will be mercenaries who, although organized as a group or unit and fighting on the side of a Party to the conflict, are not, in the terms of Article 43, “under a command responsible to that Party to the conflict for the conduct of its subordinates.”

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Art. 47, para. 2 reads: “A mercenary is any person who: (a) is specially recruited locally or abroad in order to fight in an armed conflict; (b) does, in fact, take a direct part in the hostilities; (c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party; (d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict, (e) is not a member of the armed forces of a Party to the conflict, and (f ) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

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Protection of the Civilian Population

As set out in section II, the Diplomatic Conference by adopting Article 48 of Protocol I reaffirmed the principle of distinction between civilians and combatants and between civilian objects and military objectives. The obligation to make these distinctions serves, as the Article states, “to ensure respect for and protection of the civilian population and civilian objects.” As a logical consequence, the Article lays down that the Parties to the conflict “accordingly shall direct their military operations only against military objectives.” “Respect” and “protection” are key notions in the law of Geneva relating to the protection of war victims. As Jean Pictet explains, the two notions are complementary, with “respect” having a more negative and “protection” a more positive connotation. To respect a person means to abstain from doing him harm or threatening him, to spare his life, integrity and means of existence, to show consideration for his personality. Protection means to shield a person from the evil, dangers or suffering that might threaten him, to come to his defence, to lend him aid and support. The history of recent armed conflicts makes abundantly clear that the civilian populations in affected countries are in dire need of such “respect and protection”. At the same time, these concepts are evidently too broad and too vague to serve, of themselves, as guidelines for the actual conduct of hostilities. Similarly, the mere reaffirmation, even in solemn treaty form, of the principle of distinction cannot be expected to bring about any radical improvement in the often dismal fate of these civilian populations. Clearly, the principle of distinction and the concepts of respect and protection were in need of elaboration into a set of detailed rules governing the conduct of hostilities, which would balance, as carefully as possible, the humanitarian values at stake with military requirements. This is precisely what Articles 49-67 purport to achieve: in often minute detail, these articles lay down rules for the general protection of civilians and civilian objects, as well as for the special protection of objects indispensable to the survival of the civilian population, of the natural environment, of works and installations containing dangerous forces, of non-defended localities and demilitarized zones, and of civil defence organizations. In part, the articles reaffirm existing law; for another part, they lay down new rules. In either case, the formulation ultimately agreed upon was the outcome of a prolonged negotiating and drafting process, with fallible human beings as the actors, and characterized more often than not by the need to reconcile sharply conflicting interests and diametrically opposed views. The result, of course, is less than perfect. Yet, the broad spectrum of expert knowledge about the realities of 59

Jean S. Pictet, Le Droit humanitaire et la Protection des victimes de la guerre (1973) at pp. 84-85. See also The Geneva Conventions of 12 August 1949, Commentary published under the general editorship of Jean S. Pictet, vol. I (1952) pp. 134-135.

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present-day armed conflict represented in many of the delegations participating in the Conference, as well as the patience and care with which the negotiations were generally conducted throughout the Conference, would seem to warrant the expectation that the rules which ultimately emerged are basically sound and are suited to be actually applied. Here, an obvious difficulty arises. The Conference elaborated one single set of rules designed to ensure respect for and protection of the civilian population in international armed conflicts. However, the reality of armed conflicts assumes many different forms, ranging from the classical pitched battle between armies in the field to all sorts of guerrilla-type operations, and from the use of mortars, tanks and ground-support fighters to that of long-range artillery, strategic bombers and ballistic missiles. While this may of itself give rise to widely divergent evaluations of the potential efficacy of given rules, it might even be queried whether the adoption of a single set of rules purporting to govern all these diverse situations was really the most appropriate course to take. The answer is twofold: first, the specific problems posed by the deployment and possible use of nuclear weapons were considered from the very outset to be beyond the scope of the Conference. Second, the Conference did not even contemplate the possibility of making different sets of rules, say, for traditional land warfare, air warfare, guerrilla warfare, and so on: the rules it designed were, indeed, expected to be applicable to all these different types of warfare. The rules, it should be added, were not drafted as military instructions which, as such, could be immediately applied by this or that branch of the armed forces: although far more precise and detailed than the basic principles they elaborate, they are still abstract rules designed to cover all contingencies. One obvious conclusion is that to have their full effect, they will in turn have to be elaborated into military instructions. Equally obviously, much will come to depend on those who write these instructions and, notably, their faithfulness in rendering the principles and rules for the protection of the civilian population in language adapted to the specific requirements of each of the armed services. Most problematical of all will be, and remain, the instructions to irregular armed forces; it should be recalled, however, that Article 43 (“Armed forces”) makes it a requirement for all armed forces, the irregular ones not excluded, to be “subject to an internal disciplinary system, which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict”: such an 60

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“Problems relating to atomic, bacteriological and chemical warfare are subjects of international agreements or negotiations by governments, and in submitting these draft Additional Protocols the ICRC does not intend to broach these problems”: ICRC, Draft Additional Protocols to the Geneva Conventions of 12 August 1949, (1973) p. 2: Introduction. This point is made explicit in the report of Committee III on its work during the second session, CDDH/215/Rev. 1 para. 50.

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enforcement system presupposes a set of instructions spelling out what it is that shall be enforced. Rules on the protection of the civilian population and of civilian objects presuppose, first of all, a definition of the persons and objects falling within these categories. In providing these definitions, Protocol I takes a negative approach in both instances. The civilian population is stated to comprise “all persons who are civilians”, and a civilian is defined as “any person who does not belong to one of the categories of persons” qualifying for combatant status under the existing rules (Art. 50(1, 2)). Similarly, civilian objects are defined in Article 52(1) as “all objects which are not military objectives as defined in paragraph 2.” The question of which persons qualify for combatant status was discussed in some detail in section I. In the present context, it may be useful merely to recall that combatants, rare exceptions apart, must be recognizable as such at the crucial moment: Article 44(3) requires them “to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack”; this obligation arises “[i]n order to promote the protection of the civilian population from the effects of hostilities.” As for military objectives, Article 52(2) defines only objects qualifying as such, which takes account of “the fact that military objectives include objectives other than military objects – such as troops, their equipment and ground.” This restriction implies that the question of whether, and under what conditions, “troops, their equipment and ground” constitute military objectives is not governed by the specific definition of that concept given in Article 52. Generally speaking, it seems a reasonable assumption that enemy troops will represent a military objective no matter when and where they are found. Put another way, troops open to attack comprise not only those enemy units in the front line which are engaged in – or poised for – actual battle, but also concentrations of enemy soldiers in the rear, whether on the road or in camp. While this may seem a truism, it becomes somewhat less so if it is realized how often the civilian population has sustained severe losses while sharing a camp, or a road, with troops which the adversary had reason to regard – and in the circumstances chose to treat – as a military objective. We shall revert to this aspect of the matter later.

62 63 64 65

See 8 NYIL (1977) at p. 124. Art. 4A (1), (2), (3) and (6) of the Third Geneva Convention of 1949 and Art. 43 of Protocol I. Ibid., at pp. 126-129. CDDH/215/Rev. 1: Report of Committee III on its work during the 2nd session, para. 64. The definition reads as follows: “In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”.

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According to the definition contained in Article 52(2), only those objects may be treated as military objectives which (a) “make an effective contribution to military action” and (b) “whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” The two criteria, it should be emphasized, are cumulative. The former criterion will be fulfilled whenever the “nature, location, purpose or use” of the object concerned so indicates. This is quite a broad list of factors; indeed, the inclusion of “location” and “use” in particular among the determinant factors would, without further qualification, have resulted in much too wide a power being left to military commanders to regard given objects as military objectives. This needed further qualification is provided by the second of the two criteria, requiring as it does that military commanders determine, in the light of the actual situation, whether the action they intend to undertake against a given object “offers a definite military advantage”. Admittedly, “definite” is a term which leaves ample room for divergent interpretations. Indeed, other terms were proposed in the course of the proceedings. The ICRC had originally proposed that the military advantage should be “distinct and substantial.” Other terms suggested at one time or another were “direct”, “clear”, “immediate”, “obvious” and “specific”. In the end, all these alternatives were rejected in favour of “definite”. It is doubtful that another choice would have made any noticeable difference; Mr. George Aldrich, Rapporteur of Committee III, notes in his report that he for one was “unable to draw any clear significance from this choice.” Perhaps more important than the choice of this particular term is the realization that the “definite military advantage” required under the definition must be present “in the circumstances ruling at the time.” This element in the definition effectively precludes military commanders from relying exclusively on abstract categorizations in the determination of whether specific objects constitute military objectives (“a bridge is a military objective”; “an object located in the zone of combat is a military objective”, etc.). Instead, they will have to determine whether, say, the destruction of a particular bridge, which would have been militarily important yesterday, does, in the circumstances ruling today, still offer a “definite military advantage”: if not, the bridge no longer constitutes a military objective and, thus, may not be destroyed. Even so, the distinction between civilian objects and military objectives will at times be difficult to make, and may leave room for doubt in concrete situa-

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In earlier proposals as, e.g., in the formula accepted by the Institut de droit international in its Edinburgh session, 1969, these two conditions were alternative rather than cumulative; Annuaire (1969-II) p. 375. See too this writer’s The Law of Warfare (1973) pp. 53-58. CDDH/III/224: Report to Committee III on the work of the Working Group, 24 Feb. 1975, p. 6.

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tions. The same goes, for that matter, for the distinction between civilians and combatants. It is, therefore, of the utmost significance that Articles 50 and 52 both contain a clause establishing a presumption in favour of civilian status. Article 50(1), after having (negatively) defined what makes a person a civilian, goes on to provide that “[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” As the Report of Committee III notes, a presumption of civilian status was considered necessary by some “in order to preclude unscrupulous belligerents from denying the protection of the Protocol to civilians.” On the other hand, the concept of presumption was felt to be insufficiently understandable to the soldier; to avoid the difficulties to which it might give rise it seemed preferable to replace the word “presumed” in the original ICRC text by “considered”. Even so, as this writer has noted earlier: This rule, when faithfully applied, would have a marked effect on certain aspects of contemporary military practice, especially in guerrilla-type situations; in fact, it would do away with the current (and often understandable) practice of “shooting first and asking questions later.”

With respect to objects, the factor of alleged use is, perhaps more than the nature, location or purpose of the objects concerned, apt to give rise to “unscrupulous denial of protection” on the part of belligerents. Article 52(3) seeks to preclude such unwarranted denial by, first, introducing the concept of “object normally dedicated to civilian purposes”, examples of which are stated to be “a place of worship, a house or other dwelling or a school.” The Article then goes on to lay down that in the case of doubt as to whether an object belonging to this category “is being used to make an effective contribution to military action, it shall be presumed not to be so used.” In the Working Group of Committee III much discussion was devoted to the question of whether this presumption should apply without reserve, or whether an exception should be made for objects located “in contact zones when 68

69 70 71 72

This was emphasized by Mr. Paolini (France) in his explanation of vote regarding Art. 52(2). His delegation, he said, was unable to accept the stipulation in the opening sentence of this paragraph that “[a]ttacks shall be limited strictly to military objectives”, because “there were many situations in armed conflicts in which it was difficult or even impossible to determine precisely the limits of a military objective, particularly in large towns and in forest areas, in either of which enemy armed forces and groups of civilians might be intermingled.” CDDH/SR.41, 26 May 1977, para. 150. This point is of particular importance with respect to the prohibition on indiscriminate attacks; see infra. CDDH/50: Report of Committee III, 1st session, para. 40. 3 NYIL (1972) at p. 35. Loc.cit. note 67. Proposed by the Swedish delegation: CDDH/III/52.

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the security of the armed forces requires a derogation from this presumption.” The exception was defended “on the grounds that infantry soldiers could not be expected to place their lives in great risk because of such a presumption and that, in fact, civilian buildings which happen to be in the front lines usually are used as part of the defensive works.” The Rapporteur in his Report to the Committee recommended adoption of the exception; as he argued: The presumption created by this paragraph will be a significant new addition to the law, and it is of the greatest importance that it be respected in practice. It would be unfortunate to draft the provision so that it requires something we know in advance is unlikely to be lived up to.

Despite these words of caution, the Committee rejected the exception. It seems useful to emphasize that both the “presumption” in favour of civilians and the presumption properly so-called in favour of a specific group of civilian objects are indeed new rules, which, if duly respected, will contribute significantly to the protection of the civilian population. As brand new rules, which often will have to be applied in critical situations where the instinctive reaction of the soldier would in all probability be to act otherwise than he is required now to do, these rules might well be extremely vulnerable, at least initially. It is to be hoped, therefore, that an extra effort will be made to give them their proper place in military instructions and, even more important, in combat training: only in that manner can the minimum level of compliance be guaranteed which will be necessary to transform these new rules of treaty law into effective rules of military behaviour. 3.1

General Protection: Direct Attacks

“The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations” (Art. 51(1)). General protection should be distinguished from special protection; while the latter term (as in the phrase “localities and zones under special protection” – the title of Part IV, Chapter V of Protocol I) is used to indicate the fullest protection, verging on immunity, the former term implies that only a certain measure of protection is provided without an attempt being made to remove all the risks to which the category of persons or objects concerned is exposed. Thus, general protection of the civilian population and civilian objects basically implies two things: a prohibition on making them the object of direct attack, and a requirement to avoid unacceptable collateral loss or damage as a result of attacks on military objectives. Articles 51 and 52 place beyond doubt that the prohibition on making the civilian population or civilian objects the object of attack applies regardless of motive. Thus, Article 51 prohibits in particular “acts or threats of violence the pri73

CDDH/215/Rev. 1: Report of Committee III, 2nd session, para. 65.

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mary purpose of which is to spread terror among the civilian population” (para. 2), “indiscriminate attacks” (para. 4) and attacks “by way of reprisals” (para. 6). And Article 52(1) provides that civilian objects “shall not be the object of attack or of reprisals”. In commenting on these particular prohibitions, it may be useful to deal with terror and reprisals first, reserving the concept of indiscriminate attacks to a later stage. The concepts of terror and reprisals, although technically distinct, are intrinsically closely connected. They are mentioned together in Article 33 of the Fourth, or Civilians, Convention of Geneva of 1949. The Article prohibits inter alia “collective penalties and likewise all measures of intimidation or of terrorism” and “reprisals against protected persons and their property.” These prohibitions apply mainly with respect to the civilian population inhabiting occupied enemy territory. The authoritative Commentary to the Geneva Conventions, published under the general editorship of Jean Pictet, does not even attempt to construe a clear distinction between the several notions referred to. It explains that “[d]uring past conflicts, the infliction of collective penalties has been intended to forestall breaches of the law rather than to repress them; in resorting to intimidatory measures to terrorize the population, the belligerents hoped to prevent hostile acts.” Evidently, “breaches of the law” and “hostile acts” will normally amount to the same thing in occupied territory. Then, an occupying Power will normally have recourse to such measures only after resistance has become manifest; thus, while the measures in question will be resorted to with a view to preventing further hostile acts, they will at the same time represent a reaction to past acts of resistance. Put another way, the “measures of intimidation or of terrorism” will as likely as not constitute both collective penalties and reprisals at the same time (or, rather, “quasi-reprisals”, as they are not primarily intended to bring pressure to bear on the enemy State or Government, but merely on the local population). The Commentary, in line with the above argument, states that “reprisals constituted a collective penalty bearing on those who least deserved it” – i.e., on those who were themselves innocent of the previous acts of resistance which gave rise to the collective penalty/measure of intimidation or of terrorism/reprisal. The reprisals which have now come to be prohibited in Articles 51 and 52 of Protocol I are genuine belligerent reprisals, as their aim would be to bring pressure to bear on the enemy authorities to abandon a mode of conduct which the retaliating side regards as an infringement of the law of armed conflict (e.g., attacks on the civilian population or which, although directed against military objectives, cause excessive losses among the civilian population). Yet, the relationship with acts “the primary purpose of which is to spread terror among the 74

The Geneva Conventions of 12 August 1949, op. cit. note 59, vol. IV (1958) pp. 225-226, 228. For a fuller discussion of the concepts of reprisals and “quasi-reprisals” and the history of their prohibition vis-à-vis protected persons, see this author’s Belligerent Reprisals (1971).

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civilian population” is as close here as in the context of Article 33, Fourth Geneva Convention. True, acts of terror can be resorted to without the enemy previously having done likewise; the “primary purpose” will then be “to spread terror among the civilian population”, but immediately behind that primary purpose looms the real purpose of the act, viz., to affect, via the morale of the civilian population, the decision-making process in the enemy State: affecting the morale of the civilian population is never an end in itself. Reprisals against the civilian population, on the other hand, presuppose some form of unlawful conduct of the adversary, against which they constitute a reaction. Yet, the purpose of the act of reprisal is once again primarily “to spread terror among the civilian population” and thus indirectly to influence future decisions of the enemy authorities. Put another way, while “acts of violence the primary purpose of which is to spread terror among the civilian population” need not be reprisals, “attacks against the civilian population or civilians by way of reprisals” will always also be acts of terror. Both the prohibition on acts of terrorism and that on reprisals against the civilian population encountered no significant opposition. They were adopted by consensus in Committee III and, although a vote on the Article containing these prohibitions was made necessary in Plenary by a request of France, it was adopted there by 77 votes in favour, one against (France) and 16 abstentions. It may be added that the objections France raised in Plenary were not connected with either the prohibition on acts of terrorism or that on reprisals. It should be noted, finally, that nothing in the language of Article 51(2) suggests that it is designed to prohibit only the type of large-scale, long-distance bombardment action well-known from the Second World War or the Vietnam War: on the contrary, it clearly encompasses terrorist acts of any scale, including the small-scale terrorist attack on the inhabitants of a village or house carried out by a band of guerrilla fighters. This realization gains importance in view of the fact that “wars of national liberation” are now counted among international armed conflicts, without any exception having been made regarding the applicability of the rules and principles for the protection of the civilian population. 3.2

General Protection: Collateral Injury

While the above prohibitions on attacking the civilian population or individual civilians as such, on terrorist acts and on attacks by way of reprisal are relatively 75 76 77

CDDH/215/Rev. 1: Report of Committee III, 2nd session, para. 60. CDDH/SR. 41, 26 May 1977, para. 118. France had long pushed for an article on “exceptional measures in the event of grave breaches.” See this author’s “Reprisals in the CDDH”, in Robert J. Akkerman et al., eds., Declarations on Principles - A Quest For Universal Peace (1977) pp. 195-216. In the end, France withdrew its proposal; CDDH/405/Rev. 1: Report of Committee I, 4th session, para. 28.

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straightforward, simple provisions, the rules concerning indiscriminate attacks are highly complicated. The opening sentence of Article 51(4) proclaims a clear starting-point: “Indiscriminate attacks are prohibited.” This is followed however by a definition of what indiscriminate attacks are (the remainder of para. 4) and a non-exhaustive list of types of attack that are to be considered as indiscriminate (para. 5). The rules contained in these paragraphs are, moreover, closely connected with the provisions in Chapter IV relating to “precautions in attack” (Art. 57) and “precautions against the effects of attack” (Art. 58), as well as with specific rules on the “presence or movements of the civilian population or individual civilians” in paragraphs 7 and 8 of Article 51. The complexity of this bundle of rules should not cause surprise: it is merely a reflection of the varied ways in which the civilian population can come to be exposed to the effects of hostilities. The attempt, in the above articles of the Protocol, to reduce to an acceptable level the loss and damage which the civilian population is bound to suffer as a result of attacks on military objectives, can perhaps best be understood by taking two extreme situations first. One is the attack against an area (a major city, for instance) containing, besides a concentration of civilians, one or more military objectives of greater of lesser importance. If the attack is directed, not against one or other of these military objectives but as-it-were blindly against the entire area, this constitutes the prototype of an indiscriminate attack, defined in Article 51(4), as an attack “of a nature to strike military objectives and civilians or civilian objects without distinction.” Its total lack of consideration for the civilian population makes this type of attack utterly reprehensible, and there can be no question that it has rightly been made the subject of an express prohibition. At the other extreme of the scale is the attack on a well-defined military objective, carefully prepared, with all due respect for the civilian population and carried out with appropriate and sufficiently precise weapons, but in the course of which some civilians unfortunately happen to be too close to the target and are inadvertently killed. In this case, the loss of civilian life, no matter how regrettable, will be regarded as unavoidable and, hence, acceptable. Specifically, the attack does not present the characteristics of an “indiscriminate attack” according to the definition in Article 51(4), nor is it to be “considered” as indiscriminate under paragraph 5; again, it does not violate the provisions of Article 57 (“precautions in attack”): indeed, it is in conformity with the basic requirement set out in the first paragraph of that Article: “In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.” 78

Art. 51(4) also regards as indiscriminate attacks “those which employ a method or means of combat which cannot be directed at a specific military objective” and “those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol.” It adds that the attacks “consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.” It is noted in passing that the latter two types of “indiscriminate attack” are surrounded by somewhat greater doubt than is the first one.

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Somewhere between these two extreme positions we must find the dividing-line separating acceptable losses among the civilian population or damage to civilian objects from unacceptable ones, and, with that, permissible attacks on military objectives from those that are prohibited. The concept that comes to mind here is that of proportionality between civilian losses and military advantage; an attack which entails no more than proportionate civilian loss would then be permissible, whereas an attack causing disproportionate civilian loss would be prohibited. Indeed, a rule to this effect may be taken to belong to the body of customary law of armed conflict. Yet, its inclusion among the rules in Protocol I for the protection of the civilian population did not go unopposed, and in effect, the terms “proportionate” or “disproportionate” do not figure in the text as ultimately adopted. Opposition on principle to the very concept of proportionality had been raised from the outset by the Romanian delegation, which maintained that there could never be any justification for civilian losses resulting from attacks on military objectives. This view mustered almost no support; in a separate vote, requested by the Romanian delegate in Committee III, on a text containing the principle of proportionality, the phrase was retained by 56 votes to 6, with 3 abstentions. On the other hand, as noted a moment ago, neither “proportionate” nor “disproportionate” is used in the text of Protocol I. Instead, the concept of “excessive civilian loss” finally emerged as an alternative acceptable to the great majority of delegations. This concept has found a place in two Articles of Part IV. First, according to Article 51(5) (b), an attack is to be “considered as indiscriminate” when it “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” Secondly, Article 57(2) enjoins “those who plan or decide upon an attack” to “refrain from deciding to launch” the attack whenever it “may be expected to cause” such excessive loss, injury or damage, and it goes on to require that “an attack shall be can-

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CDDH/III/SR. 21, 17 Feb. 1975, para. 91: Mr. Reed (USA): “As to the principle of proportionality, the aim was to draft a rule which was in his view already established by custom and in practice … The rule already existed, and it must be explicitly codified in the documents designed to ensure the protection of the civilian population and civilian objects.” Ibid., para. 11: Mr. Cretu; and see, for the attitude of the Romanian delegation at the time of the experts’ conferences, 3 NYIL (1972) p. 18, at pp. 39-40. CDDH/III/SR. 31, 14 March 1975, para. 31; in a subsequent explanation of vote, Mr. Cristescu (Romania) fulminated once more against the principle of proportionality which, as he explained at length, “his delegation had always opposed”, and it “was contrary not only to humanitarian principles but to the general principles of international law”; ibid., para. 42. CDDH/215/Rev. 1: Report of Committee III, 2nd session, para. 97.

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celled or suspended if it becomes apparent” that the attack “may be expected to cause” such excessive civilian loss (etc.). These are interesting formulations, which deserve some comment. First, “excessive” is no more a mathematically precise element in these tests than would have been the word “disproportionate”, and those called upon to apply the tests in practice may predictably be tempted to place a subjective interpretation on the term. Evidently, this works both ways: the party suffering an attack will perhaps too readily denounce it as excessively injurious to the civilian population and, hence, indiscriminate, whereas the attacking party may be too readily inclined to assume that no excessive damage to the civilian population could be expected. In such a dispute, it will be important to bear in mind that the norm set forth in Articles 51 and 57 refers to expected rather than actual civilian loss; thus, even though ex posteriori the losses which an attack has caused among the civilian population may appear excessive in relation to the military advantage actually achieved, it will not represent an indiscriminate attack if no such excessive losses were to be expected (or if, which amounts to the same thing, the military advantage anticipated was far greater than that actually achieved). While the phrases “expected” civilian loss and “anticipated” military advantage may seem to favour the attacking side, further elements in the formula operate to counterbalance this ostensible bias and place beyond doubt that the formula is actually far from according the attacker discretionary power to decide whether a planned attack will be discriminate or not. A first counter-balancing element lies in the requirement that, rather than some hypothetical or long-term military advantage, only the concrete and direct military advantage anticipated by the attacker may be taken into consideration. Then, the test is not whether “those who plan, decide upon, or execute an attack” expect it to cause excessive civilian loss, but whether it may be expected to cause such excessive loss. The last-mentioned element in the norm is of particular importance, as may be evident from the following quotation. The Head of the United Kingdom delegation to the Conference, Mr. Freeland, in explaining in Plenary why his delegation had voted in favour of Article 46 (subsequently renumbered as 51), stated that “military commanders and others responsible for planning, initiating or executing attacks necessarily had to reach decisions on the basis of their assessment of the information from all sources which was available to them at the relevant time.” This may seem a truism; indeed, as a statement of plain fact it could hardly be otherwise. However, military commanders remain fallible human beings who can err in their judgment. If they do err in their assessment of the available information (for instance, by discounting too lightly certain indications that the military objective they are planning to attack is really of far less “concrete and direct” importance than other information has led them to believe), this error in judgment is their responsibility, and they cannot absolve themselves by saying that 83

CDDH/SR. 41, 26 May 1977, para. 121 (italics supplied).

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“on the basis of their assessment of all the information available” the attack was not expected to cause excessive loss. Then, what is to be understood by “available information”? The case comes to mind of the American submarine, the Queenfish, which on 1 April 1945 torpedoed the Japanese cartelship Awa Maru. This ship had completed a voyage to Hong Kong, Singapore and other ports on the Asian continent, carrying relief goods supplied by the United States and destined for American and other Allied prisoners in Japanese hands; at the time of the incident she was on her return voyage to Japan, always sailing under a safe conduct granted by the United States. Apparently, the commanding officer of the Queenfish had been unaware of the safe conduct granted to the Awa Maru. For this lack of awareness he was subsequently relieved of his command and court-martialled. Information concerning the voyage of the Awa Maru under safe conduct had been received on board the Queenfish in time but had failed to reach him, owing to inefficiency in the internal procedures on board his ship for which he, as commanding officer, was held responsible. This appears to be a correct interpretation of the concept of command responsibility. Applied to the question posed above, it means that information relevant to the assessment of expected civilian loss is “available” not only when it has actually reached the military commander or other person “responsible for planning, initiating or executing” an attack, but equally when that person’s lack of knowledge about information available within his unit is due to circumstances for which he is personally responsible. The present author would go one step further and consider an attack as indiscriminate if information leading to that conclusion, although not in fact available within the unit concerned, could have been available but was not, because the military commander neglected to take the necessary steps to acquire it. It is contended that such an extension of “information available” to the information that ought to have been available is, indeed, implied in the notion of an attack which may be expected to cause excessive civilian loss. After all, the purpose of Articles 51 and 57 is not to provide a factual description of the military decisionmaking process; rather, they set out an objective standard for the judgment of military behaviour in carrying out attacks on military objectives involving the risk of excessive injury to the civilian population. Apart from this standard for distinguishing discriminate attacks from those that are considered as indiscriminate, Article 57 in particular contains further safeguards for the protection of the civilian population. Sub-paragraph 2(a) requires “those who plan or decide upon an attack” to “do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the 84

See, e.g., US Naval War College, International Law Studies 1966; W.T. Mallison, Jr., Studies in the Law of Naval Warfare: Submarines in General and Limited Wars (1968) p. 126.

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meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them.” This requirement indirectly corroborates the point made above concerning the need to assemble all available information about the risks incurred by the civilian population. Under the same sub-paragraph, the military planners and decision-makers are required to “take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.” This duty to avoid or at least minimize civilian loss in effect precedes the obligation, discussed above, to “refrain from deciding to launch” an attack which may be expected to cause excessive civilian loss, and to cancel or suspend the attack even after it has been decided upon, if at that later stage it becomes apparent that it may be expected to cause such excessive civilian loss. On top of all this, Article 57 requires the attacker to give “effective advance warning … of attacks which may affect the civilian population, unless circumstances do not permit” (para. 2(c) – a clause fatally weakened by the exception at the tail) as well as, “when a choice is possible between several military objectives for obtaining a similar military advantage”, to select the objective the attack on which may be expected to cause the least danger to civilian lives and to civilian objects (para. 3). In sum: indiscriminate attacks are prohibited; these comprise, first and foremost, those attacks which do not even attempt to distinguish between civilian populations and military objectives and which, hence, are in flagrant violation of the basic requirement to take, in the conduct of military operations, constant care to spare the civilian population, civilians and civilian objects. From this basic requirement follow the duties of verification and of totally avoiding, or in any event minimizing, incidental civilian loss. Only after this follows, as a last resort, the standard of excessive civilian loss, setting the borderline between attacks that will have to be considered as indiscriminate and those barely escaping that qualification. Especially the latter rule cannot and should not be understood as a license to cause civilian loss precisely up to that limit. Indeed, paragraph 5 of Article 57 goes to the length of placing this beyond question: “No provision of this article may be construed as authorizing any attacks against the civilian population, civilians or civilian objects”.

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For that reason, the Romanian delegates to the Conference of Government Experts had proposed to delete a similar clause contained in the ICRC draft text; see 3 NYIL (1972), at p. 40. As far as the records of the Diplomatic Conference show, the Romanians this time did not repeat their suggestion. “The so-called rule of proportionality in para. 2(a)iii was found ultimately to be acceptable when it was preceded by para. 2(a)i and para. 2(a)ii which prescribe additional precautions and are phrased in terms of losses ‘excessive in relation to the concrete and direct military advantage anticipated’, and was supplemented by para. 5

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There is, of course, another side to the matter. Taking into account the many precautions which an attacker is required to take in order to minimize civilian loss, it seems only reasonable to expect that certain precautions will be taken on the other side as well. After all, if all important military objectives were located amidst the civilian population, and if that population were not to budge an inch even after having been warned of imminent attacks on specified military objectives, it might become extremely hard for the attacker to refrain from carrying out attacks whenever excessive civilian loss may be expected. Accordingly, Article 58 lays a duty on “the Parties to the conflict” to take certain “precautions against the effects of attacks” (as the Article is entitled). The available precautions are few and not difficult to conceive: to remove the civilian population from the vicinity of military objectives or, alternatively, to avoid locating military objectives amidst the civilian population; to provide the civilian population with shelter against the effects of attacks; and to have an effective civil defence organization. Advisable though each of these precautions may be, one hundred per cent realization will often be beyond the powers of a “Party to the conflict”. Taking this into account, Article 58 at the outset lays no further obligation on the “Parties to the conflict” than to take precautions “to the maximum extent feasible.” Apart from this general restriction, further qualifications are attached to the former two precautions mentioned; the Parties concerned need only “endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives” and they only need to “avoid locating military objectives within or near densely populated areas.” (italics supplied) As for the latter two precautions mentioned above, these are not further specified; Article 58 states in quite general terms that the Parties to the conflict shall, always “to the maximum extent feasible”, “take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations”. It should be emphasized that the above “precautions against the effects of attacks” have not been introduced to facilitate military operations. Rather, they are intended to reduce the risks incurred by the civilian population as a result of military operations that will be carried out anyway. Evidently, in certain situations the “maximum extent feasible” will not amount to very much, and certainly not to an effective protection of the civilian population. Thus, in highly industrialized, densely populated Western Europe an effective separation of the civilian population and military objectives may be extremely hard to achieve and, at times, even be wholly impracticable. In such a situation, it is important to realize that Article 57 continues to apply with full vigour; in particular, those wishing to attack military objectives located in such an area will have to “do everything feasible” to verify that the targets selected are military objectives and to avoid or to make clear that it may not be construed as authorization for attacks against civilians.” CDDH/215/Rev. 1, Report of Committee III, 2nd session, para. 97.

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at any rate minimize civilian loss; their obligation to refrain from indiscriminate attacks (including those that “may be expected to cause” excessive civilian loss) remains as absolute as ever. Indeed, Article 57 continues to apply even in the event that the “presence or movements of the civilian population or individual civilians” is deliberately “used to render certain points or areas immune from military operations.” Article 51(7) forbids the Parties to the conflict so to use the civilian population, “in particular in attempts to shield military objectives from attacks” (the tanks parked close to the houses in the village street) “or to shield, favour or impede military operations” (the retreating army intermingling with the stream of refugees on the road; the numerous civilian employees not removed from the premises of an arms factory threatened with attack). The paragraph even makes a point of adding, in a second sentence, that the Parties to the conflict “shall not direct the movement of the civilian population or individual civilians” in order to achieve such purposes. Now, supposing that a Party to the conflict does make such prohibited use of the presence or movements of the civilian population, or does direct their movement in such a prohibited manner, the argument might be imagined that any resultant civilian loss is that Party’s exclusive responsibility and that the other side is, therefore, no longer obliged to spare the civilian population. This line of argument is expressly excluded however by Article 51(8) which prescribes that “[a]ny violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided in Article 57.” The above exposé, lengthy though it is, does not exhaust the subject of the general protection of the civilian population against the effects of hostilities in Protocol I. Yet it may suffice to demonstrate that the prohibition of indiscriminate attacks and, in close connection therewith, the provisions on precautionary measures represent a particularly complicated set of rules. Not surprisingly, while some delegations at the Conference hailed these rules as a major contribution to the protection of the civilian population, other delegations were less enthusiastic. Most outspokenly critical was the Head of the French delegation, Mr. Paolini: although he had “no fundamental objection to the principle of the prohibition of indiscriminatory attacks in order to protect the civilian population”, he considered that the provisions elaborating this principle “by their very complexity would seriously hamper the conduct of defensive military operations against an invader and prejudice the exercise of the inherent right of legitimate defence recognized in Article 51 of the Charter of the United Nations.” Some other delega87

CDDH/SR. 41, para. 111. Mr. Paolini gave some examples which, he felt, supported his contention, and he repeated once again that the provisions at issue “went beyond [their] humanitarian aim and [were] likely seriously to impair the inherent right of legitimate defence”; ibid., paras. 111-116. – The French posture with respect to rules in the Protocol which “went beyond the strict confines of humanitarian law and in fact regulated the law of war” was mentioned earlier in section I of this paper.

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tions echoed this fear of an adverse impact on national defence; however, none of them went to the length of casting their vote against Article 46 (51 in the final version), thus leaving France alone in its negative vote. While the French were logical in voting against an Article the implications of which for national defence they saw reason to fear, the delegation of Romania, the all-time champion of near-absolute protection of the civilian population, took a different line. After expressing “its satisfaction at the inclusion of such an article in Protocol I”, it explained that “humanitarian law must develop in the context of present-day international law, which prohibits the threat or use of force, and likewise prohibits aggression.” On the other hand, the UN Charter affirms the right of self-defence, and, the delegation stated, “it is accordingly obvious that, when confronted with an incident of exceptional seriousness such as aggression directed against a foreign territory or its occupation, international law cannot restrict the legitimate right of a victim of aggression to defend himself.” This is tantamount to saying that, while the aggressor will be bound to respect the rules relating to the protection of the civilian population, the victim of aggression need not do so. Regrettably, the Romanian delegation did-not indicate which rules of Article 51 its country would feel free to derogate from if it were to become the victim of aggression. Actually, only two things come to mind: within its own territory, the party attacked may choose to disregard paragraph 7 on the “presence or movements of the civilian population or individual civilians” – greatly to the detriment of those civilians, as such a policy will considerably reduce the scope of “feasible precautions” which the attacking side is obliged to take under Article 57(2). Alternatively, the Romanians might have been thinking of counter-attacks on the territory of the aggressor, and might wish to claim for that event the right to set aside all the rules for the protection of the aggressor’s civilian population. Quite apart from the risk that the aggressor might decide to retaliate in kind (this notwithstanding the express prohibition of reprisals in Art. 51(6)), the whole argument, based as it is on “the need to draw a very clear distinction between the aggressor and the victim of aggression”, is really out of place in the context of humanitarian law and, indeed, in flat contradiction to its most elementary principles.

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89 90 91

Supra, text at note 76. Delegations recording their concern over the possible implications for national defence included Afghanistan, Cameroon and Colombia; CDDH/ SR. 41, 26 May 1977. Ibid., Annex. Loc. cit. See for this question and the Romanian attitude already 3 NYIL (1972) at pp. 54-55.

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Protection of Specific Objects

Article 52, on “general protection of civilian objects”, is followed by some articles that deal with a diversity of specific objects: Article 53, Protection of cultural objects and places of worship; Article 54, Protection of objects indispensable to the survival of the civilian population; Article 55, Protection of the natural environment; Article 56, Protection of works and installations containing dangerous forces. As may be evident from their headings, these articles are a mixed bag, with as only common feature that the objects or values singled out were apparently regarded as of special importance in the context of the protection of the civilian population. According to Article 53, “it is prohibited: (a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; (b) to use such objects in support of the military effort; (c) to make such objects the object of reprisals.” It addresses a question which had been dealt with earlier as well. As long ago as 1874, the authors of the Declaration of Brussels stipulated that in sieges and bombardments “all necessary steps must be taken to spare, as far as possible, buildings dedicated to art, science, or charitable purposes” (etc.); in 1899, buildings dedicated to religion were added to this list and, in 1907, historic monuments. It is generally agreed, and has been authoritatively held by the International Military Tribunal of Nuremberg, that the Hague Regulations of 1899/1907, which incorporate this position, by 1939 had become part of customary international law. On comparison, the new rule in Article 53 lays down a more stringent obligation (not to “commit any acts of hostility”, as compared to the duty to “spare as much as possible”). On the other hand, the scope of the old rule is wider in that it is not confined to objects “which constitute the cultural or spiritual heritage of peoples.” Accordingly, several Western delegations in explaining their vote on the Article expressed their understanding that the new rule is, in the words of the US delegation, “not intended to replace the existing customary law prohibitions reflected in Article 27 of the 1907 Hague Regulations respecting the Laws and Customs of War on Land protecting a variety of cultural and religious objects.” Rather, the US delegation went on to explain: “the article establishes a special protection for a limited class of objects which because of their recognized importance constitute a part of the special heritage of mankind. Other monuments, works of art or places of worship which are not so recognized, none the less represent objects normally dedicated for civilian purposes and are therefore presumptively protected as civilian objects in accordance with the provisions of

92 93

Art. 17; Schindler & Toman, op. cit. note 21, p. 29. Art. 27 of the Hague Regulations Respecting the Laws and Customs of War on Land; ibid., p. 78.

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Article [52].” Indeed, these other cultural objects, although not protected from “any acts of hostility under Article 53”, share in the protection, not only of Article 52, prohibiting the making of civilian objects “the object of attack or of reprisals”, but also of Articles 51 and 57 prohibiting indiscriminate attacks and prescribing precautions in attack. Article 53(b), as quoted above, prohibits the use of the objects enumerated in para. (a) “in support of the military effort.” This is the price which has to be paid for the protection granted under (a); indeed, use of such objects “in support of the military effort” would be clearly incompatible with an obligation upon the adversary to respect them. The Western delegations mentioned above made this point when they expressed their understanding that, should such objects be used in support of the military effort, they would lose the special protection of this Article. Obviously, the question of whether these objects may then be attacked will depend on whether they constitute a “military objective” as defined in paragraph 2 of Article 52. Once again, in order to be so qualified, the objects need to “make an effective contribution to military action” and their “total or partial destruction, capture or neutralization, in the circumstances ruling at the time, [must offer] a definite military advantage”; these are far more stringent conditions than merely that the objects are used “in support of the military effort”. In contrast with Article 27 of the 1907 Hague Regulations, Article 53 of Protocol I does not require any marking of the objects it protects. In other respects as well, the Article contains no more than a statement of principle leaving open all the questions which would arise if it were to be applied in practice. While from this point of view the Article is most imperfect, it may even be regarded as redundant in view of the existence of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, of 14 May 1954 and in force since 7 August 1956, which provides an elaborate and carefully balanced system of protection for objects constituting “cultural property” as defined in Article 1 of that Convention. Article 53 in its opening sentence 94 95 96

CDDH/SR. 42, 27 May 1977, Annex. Ibid. “For the purposes of the present Convention, the term ‘cultural property’ shall cover, irrespective of origin or ownership: (a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above; (b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-para, (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in sub-para, (a); (c) centres containing a large amount of cultural property as defined in sub-para, (a) and (b), to be known as ‘centres containing monuments’.” – The Convention provides

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explicitly refers to the Hague Convention, stating that it is “without prejudice to the provisions” of that Convention (as well as “of other relevant international instruments” – such as the Hague Regulations). Obviously, for Article 53 to be really redundant, all potential Parties to Protocol I would have to be Parties to the 1954 Hague Convention; regrettably, this is not the case: according to the latest information available, 66 states have ratified or acceded to the Convention. This leaves room for Article 53, although it would be vastly preferable if all States become Parties to the far more perfect Hague Convention. Indeed, this point is made express in Resolution 20 adopted by the Diplomatic Conference, which in its operational paragraph “Urges states which have not yet done so to become Parties to the aforementioned Convention”. Article 54, the next in the list, provides yet another excellent example of an important principle being elaborated into a detailed set of rules so complicated that they cannot, without further instructions, be applied by the soldier in the field. The principle, set out in paragraph 1, is that “[starvation of civilians as a method of warfare is prohibited”. As with other principles in Part IV of Protocol I, this principle is a logical consequence of the basic notion of “respect for and protection of the civilian population” in Article 48 and the ensuing principle of “general protection of the civilian population against dangers arising from military operations” (Art. 51(1)). Yet, the fact that it was expressly enunciated in Article 54 can be considered, as the Report of Committee III states, as “an important addition to the law protecting civilians.” Even though the principle does not purport to change the law of naval blockade, it affects both the power of belligerents to attack “objects indispensable to the survival of the civilian population” (the subject-matter of the remaining paragraphs of Art. 54) and their obligations in respect of relief actions in favour of the civilian population (Articles 68-71). In drafting specific rules on the protection of “objects indispensable to the survival of the civilian population”, the main problem seems to be to determine what objects fall under this heading. Yet, paragraph 2 of Article 54 actually leaves two systems: one of general protection, applicable to all objects falling under the definition of “cultural property”, and one of special protection for especially selected objects meeting the very severe requirements set out for that purpose. For text, see Schindler & Toman, op. cit. note 21, p. 525 et seq. 97 Information supplied on 25 July 1978 by the Treaties Department of the Netherlands Ministry for Foreign Affairs. 98 Adopted over the objections of Sri Lanka and Syria, in the 55th plenary meeting, on 7 June 1977, by 53 votes to none, with 33 abstentions; CDDH/SR. 55, paras. 4-22. 99 CDDH/215/Rev. 1, para. 73. 100 This is made clear in Art. 49(3), stating that the provisions of Part IV, Section I of the Protocol, while applying “to any land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land … do not otherwise affect the rules of international law applicable in armed conflict at sea or in the air.”

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this problem unresolved; it prohibits “to attack, destroy, remove or render useless” such objects, merely following this up with a non-exhaustive list of specific objects exemplifying the general notion. Although the list appears to be fairly complete, the possibility remains that other objects beside those enumerated may be claimed to be “indispensable to the survival of the civilian population” and hence, entitled to protection under paragraph 2. It is clear at a glance that the protection afforded these objects can never be absolute; the destruction of an “agricultural area for the production of foodstuffs” can be an unavoidable accident of war, and there is no valid reason why a belligerent would be required to respect the drinking water installation supplying a military base of the adversary. Accordingly, paragraphs 2 and 3 limit the scope of the protection in a number of ways. First, the act of “attacking, destroying, removing or rendering useless objects indispensable to the survival of the civilian population” is prohibited only if it is performed “for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party.” The same act will not be prohibited when it is carried out for another purpose; examples given in the Report of Committee III are “bombarding an area to prevent the advance through it of an enemy … whether or not the area produces food”, and “destroying a field of crops in order to clear a field for fire or to prevent the enemy from using it for cover.” On the other hand, while the purpose of the act must be to deny the objects concerned “for their sustenance value” to the civilian population or to the adverse Party, the motive behind the act is expressly stated to be irrelevant. One might have done without this concluding part of the sentence; at all events, as the Report dryly comments, the effect of it is that “the sentence does not read easily.” Secondly, paragraph 3 of Article 54 exempts from the protection afforded by paragraph 2 certain of the objects covered by that paragraph, and this on account of the use to which the adverse Party puts them. Mention is made of use “(a) as sustenance solely for the members of its armed forces”; the Report adds that only those objects are intended here which clearly are so assigned. While this is a fairly clear-cut provision, sub-paragraph (b) can hardly be so qualified; it excludes from the protection of paragraph 2 objects which are used:

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The list in para. 2 includes “foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.” 102 CDDH/215/Rev. 1, para. 74. 103 Ibid., para. 75. 104 Ibid., para. 76.

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It is to be feared that those called upon to apply this provision in practice may experience some difficulty in appreciating, first, the subtle difference between “sustenance solely for enemy combatants” and “direct support of military action.” Once accepting that the latter concept evidently must be the wider of the two, they will search in vain for an indication how much wider it is: what is “military action”, when is support “direct”? Supposing that they have cleared this hurdle they will next have to form an estimate of the food situation on the other side, and refrain from actions against given objects, even though these are used “in direct support of military action”, if the actions concerned “may be expected” (not to leave the civilian population without food or water, but) “to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement.” When may a civilian population be expected to begin to starve, when will it find itself forced to move by the lack of food or water? The answer to these questions will depend in large measure on that population’s capacity to endure – not an easy factor for the adversary to assess. The only help he gets from the records is the statement in the Report that the term “civilian population” in this sub-paragraph “was not intended to mean the civilian population of a country as a whole, but rather of an immediate area, although the size of the area was not defined.” Small help! While paragraph 4 adds to the protection of “these objects” (presumably those “indispensable to the survival of the civilian population” as defined in paragraph 2, rather than those exempted from protection under paragraph 3) by stating that they shall not be made “the object of reprisals”, paragraph 5 permits a Party to the conflict, “[i]n recognition of [its] vital requirements … in the defence of its national territory against invasion”, to derogate from the prohibitions to destroy, remove or render useless, “within such territory under its own control”, objects indispensable to the survival of its civilian population “where required by imperative military necessity.” This bow to the requirements of national defence, which permits the national authorities to apply a “scorched earth” policy when they consider this an “imperative military necessity”, cannot have failed to please the French and other staunch defenders of the right of self-defence as a limit to the applicability of humanitarian law. At all events, neither France nor any other delegation requested a vote on this Article or any of its paragraphs in Plenary;

105

Loc. cit.

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the Article was adopted by consensus and without so much as a word of comment. Protection of the natural environment, the subject-matter of Article 55, has not until fairly recently attracted the attention of lawmakers in the field of humanitarian law applicable in armed conflicts. Obviously, the war in Vietnam has contributed significantly to arousing this interest, as in that of protection of “objects indispensable to the survival of the civilian population.” In effect, although the two subjects do not coincide entirely, they are certainly closely connected. Interest in protection of the natural environment in the context of the development of humanitarian law had already become apparent at the stage of the Conference of Government Experts preceding the Diplomatic Conference. At the time, this interest was displayed solely by some few East European delegations, while the more numerous West European group remained utterly silent on the subject. Perhaps because of this lack of interest on the Western side, the ICRC, in drafting the Protocols it submitted to the Diplomatic Conference, omitted any reference to the question. This was not to be the last of it, however. Already at the first (1974) session of the Conference, in the course of the general debate in Plenary, the matter was taken up by several speakers, among them the Head of the Australian delegation, Mr. Mahoney. His country was thus the first among the group of the “Western and other countries” (although at the time a very leftist member of the group) to take the question seriously. Mr. Mahoney

106 CDDH/SR. 42, 27 May 1977, para. 19. – When the draft Article was initially discussed in Committee III, the French delegate, Mr. Bretton, did not refer to the possible national defence aspects of the proposed text; in contrast, Mr. Blix (Sweden), who could never be accused of taking too much account of the needs of national defence, nonetheless expressed his delegation’s understanding of “a scorched-earth policy which was used to stop enemies invading a Party’s own territory. That was a deep-rooted practice which should be taken into account.” CDDH/III/SR. 17, 11 Feb. 1975, para. 19. 107 ICRC, Report on the Work of the Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, second session, 3 May - 3 June 1972 (1972), vol. I, para. 3.19; vol. II, documents: CE/ COM III/C 2 (Poland), CE/COM III/C 6 (Czechoslovakia, German Democratic Republic, Hungary), CE/COM III/C 68-69 (Bulgaria, Czechoslovakia, German Democratic Republic, Hungary, Poland). The last-mentioned proposal, merging the two earlier proposals, proposed a prohibition “to use means and methods [of combat] which destroy the natural human environmental conditions.” At the XXIInd International Conference of the Red Cross, Teheran, Nov. 1973, the Government delegations of Czechoslovakia, the German Democratic Republic and Hungary reiterated their suggestion, proposing to include “the salubrity and balance of the natural environment” in the draft article on protection of objects indispensable to the survival of the civilian population; ICRC, Report on the Study by the XXIInd International Conference of the Red Cross of the Draft Additional Protocols to the Geneva Conventions of August 12, 1949 (1974), para. 53 and Annexes, Part I, DH/4/Corr.6.

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even announced his delegation’s plan to “suggest the insertion in the Protocols of a new article seeking to prohibit ecological damage as a technique of war.” What at that stage could have been regarded as no more than a trickle of interest, by the time of the second session of the Conference, in 1975, had broadened into a stream of opinion. This became apparent in Committee III, where numerous speakers referred to the need to do something about the protection of the natural environment, whether on its own merits or because of its close connection with the protection of the civilian population. This difference in point of view led to two distinct sets of proposals, one seeking to introduce the principle of protection of the natural environment into Part III, Section I on “Methods and means of warfare”, and the other to do the same in Chapter III (“Civilian objects”) of Part IV of Protocol I. Both approaches were honoured in the end, with the first one resulting in the addition of a clause containing the principle as paragraph 3 of Article 35 (“Basic rules”), and the second one in the adoption of Article 55 as a separate article in Chapter III. Article 55 states the principle first: “Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage.” An obvious comment is that warfare cannot fail to do damage to the natural environment, so that it becomes all-important to know when damage must be deemed to be “widespread, long-term and severe.” The Report of Committee III provides some indication of what participants in the discussion understood by these terms, and notably by the adjective “long-term”. The element of time this represented “was considered by some to be measured in decades”; some referred to “twenty or thirty years … as being a minimum”. However, the Report cautions, “it is impossible to say with certainty what period of time might be involved.” It then goes on to relate as “a widely shared assumption” in the Committee “that battlefield damage incidental to conventional warfare would not normally be proscribed by this provision.” This already provides a fairly clear picture; first, belligerents can continue to wage “conventional warfare” (including artillery bombardment with its attendant disturbance of the ecosystem) without fear of violating the principle of protection of the natural environment. Such fear they need to harbour solely when they have recourse to rather less conventional modes of warfare, such as the use of her108 CDDH/SR. 14, 7 March 1974, para. 42. For other speakers on the question, see: CDDH/SR. 11, 5 March 1974, para. 22 (Yugoslavia), CDDH/SR. 12, 6 March 1974, para. 23 (USSR) and CDDH/SR. 13, 6 March 1974, para. 61 (Czechoslovakia). 109 See infra section IV. 110 There was no very clear idea at the Conference what was to be understood by “natural environment”, “ecological balance”, “stability of the ecosystem” etc. Rather, the Conference started from the premise that “the natural environment” was a value worth being protected against intolerable damage, and left it at that. 111 CDDH/215/Rev. 1, para. 27. See also the Rapporteur’s more detailed Report to Committee III on the work of the Working Group, CDDH/III/275 + Corr. 1.

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bicides or other methods or means specifically designed to damage the environment; even then, the protection afforded to the environment remains restricted to really serious forms of large-scale damage, meeting the requirements of being “widespread, long-term and severe.” It seems clear, therefore, that the man in the field will not easily come into conflict with this provision; rather, it is addressed at higher levels of authority where the major decisions about the use of particular means and methods of warfare are taken. This view of the scope of the principle finds corroboration in a sentence following the one quoted above. It lays down that the protection afforded in the first sentence “includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.” It should be noted that besides intention, the concept of objective expectation (“may be expected”) is once again utilized. Since only long-term damage is envisaged here, “health” and “survival” should be taken in the sense of future health or survival. As the Report notes: “The word ‘population’ was used without the usual adjective ‘civilian’ because it was thought that the future survival is that of the population in general, without regard to combatant status.” As to “health”, this “was used in a broad sense in connexion with survival to indicate actions which could be expected to cause such severe effects that, even if the population survived, it would have serious health problems, such as congenital defects which produced deformed or degenerate persons.” So as to forestall any possible misunderstandings concerning the scope of the Article, the Report notes in conclusion that “[t]emporary or short-term effects were not contemplated within the prohibitions of this article.” 112

Ibid., para. 82. – Even before Article 55 was drafted in Committee III (during the 1975 session of the Conference) the “dangers of the use of environmental modification techniques for military purposes” had been brought to the attention of the international community in a joint Nixon/Breznjew statement, signed at Moscow on 3 July 1974 and in which it was recognized “that such use could have widespread, long-lasting, and severe effects harmful to human welfare.”. In the 1977 Convention on Geophysical Warfare which eventually emerged from this initiative, the main element is a prohibition “to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party” (Art. I(1)). Apart from the non-cumulative character of the list of possible effects in the lastquoted phrase, it is interesting to note that a completely different interpretation is placed on the key term “long-lasting” in this Article than on “long-term” in Article 55 of Protocol I. According to an “understanding” arrived at in the CCD (though not attached as an annex to the Convention) effects will be long-lasting when they last “for a period of months, or approximately a season.” “Widespread”, on the other hand, is understood as “encompassing an area on the scale of several hundred square kilometres” – a scale that need not have been attained to render Art. 55 applicable. Indeed, both the “understanding” and, from the opposite angle, the statements of several participants in the Diplomatic Conference made clear that the interpretation

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For completeness’ sake, it should be mentioned that “attacks against the natural environment by way of reprisals” are prohibited under paragraph 2 of Article 55. If ever a convincing illustration were needed of the thesis that belligerent reprisals tend to hit the innocent, this paragraph could provide the best one imaginable; can anything be more completely and absolutely innocent of the wrongdoings of man than his natural environment? Of far greater immediate importance to the military man is Article 56 on “Protection of works and installations containing dangerous forces,” Not that the Article will be easy to apply: on the contrary, it undoubtedly contains one of the most peculiar and complex sets of rules in the Protocol. At the outset of the first paragraph, the task of those called upon to apply the Article is considerably facilitated by a limitative list of objects qualifying as works or installations containing dangerous forces: “namely dams, dykes and nuclear electrical generating stations.” Evidently, dams and dykes are in one class, with water as the dangerous force they contain, while nuclear electrical generating stations constitute another, separate class of objects. As experience abundantly shows, the destruction of a dam or dyke can result in large-scale disaster, and although experience with respect to nuclear power stations is thus far lacking, the results of nuclear bomb tests (including the attacks on Hiroshima and Nagasaki) suggest that equally grave, if not worse results are to be expected in the event of such installations being made the object of deliberate destruction. Dams, dykes and nuclear power stations will often constitute civilian objects, as opposed to military objectives. They then are protected against direct attack under Article 52, and the particular danger to the civilian population that might be expected to ensue from an attack on a military objective in their vicinity would represent a weighty factor in determining whether, under the terms of Article 57, that attack “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” Admittedly, this provides nothing like an absolute protection, and the possibility remains that destruction of the military objective is of such paramount importance that it is deemed to outweigh the expected incidental civilian loss, grave though it may be. This is where Article 56 intervenes, laying down as an objective standard in the second sentence of paragraph 1 that “military objectives located at or in the vicinity of these works or installations shall not be made the object of attack if such attack may cause the release of dangerous forces from the works or installations and consequent severe losses among the civilian population.” Here,

placed upon the above terms in the context of one instrument were intended exclusively for that instrument and, as the “understanding” has it, were “not intended to prejudice the interpretation of the same or similar terms if used in connection with any other international agreement.”

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the qualification as “severe” of the expected losses among the civilian population takes the place of the relative standard of “excessive loss”. Important though this enhancement in the protection of a particularly dangerous category of civilian objects may be, it is of no more than secondary interest in Article 56. Of prime importance is the possibility that a dam, dyke or nuclear power station can, under the circumstances specified in Article 52(2) itself come to represent a military objective and, thus, in principle a legitimate object of attack. It is true that even in that event the “precautions in attack” of Article 57 will continue to apply; but if, say, a nuclear power station were to be used in such a manner that it thereby, in the terms of Article 52, makes “an effective contribution to military action” and if its “total or partial destruction” would, “in the circumstances ruling at the time”, offer “a definite military advantage”, that military advantage might at the same time be deemed to weigh so heavily that even considerable civilian loss might not be regarded as excessive. Here, the first sentence of Article 56(1), achieves the same as was explained a moment ago with respect to the second sentence: in identical terms, it lays down that objects of this category “shall not be made the object of attack, even when these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population.” Evidently, the “special protection” afforded under paragraph 1 to works or installations containing dangerous forces and to other military objectives located at or in the vicinity of these works or installations does not amount to unconditional immunity from attack. Rather, the protection remains dependent on whether the attack “may cause” the release of dangerous forces and consequent severe losses among the civilian population. It is worth noting, though, that the language used here is even more stringent than that used in Article 57; the test is not whether the attacker did expect, or on the basis of his information should have expected, the release of dangerous forces with their consequent civilian loss. Rather, the test seems to be whether, in the light of all information available at the time, these effects could objectively have been foreseen. Then, as noted above, severe civilian loss is an absolute standard as compared to the relative one of loss “excessive in relation to the concrete and direct military advantage anticipated.” As is the case with hospitals, so in this case too the special protection may be discontinued in certain circumstances. The conditions for such a discontinua113 114

See, too, concerning the meaning and interpretation of Art. 56(1): CDDH/215/ Rev. 1, paras. 85-87. Although Art. 19 of the First Geneva Convention of 1949 lays down in no uncertain terms that military hospitals and ambulances “may in no circumstances be attacked, but shall at all times be respected and protected by the Parties to the conflict”, Art. 20 goes on to provide that the protection of these objects “shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy.” The Article adds that protection “may, however, cease only after a due warning has

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tion of protection are listed in paragraph 2 of Article 56. Although basically the same for all categories of objects mentioned in paragraph 1, they have been spread over three sub-paragraphs so as to take account of the peculiarities of each of the categories concerned, viz., (a) dams and dykes, (b) nuclear electrical generating stations and (c) other military objectives located at or in the vicinity of objects of the two preceding types. Common elements in all three sub-paragraphs are that the object concerned must be used “in regular, significant and direct support of military operations” and, on top of this, attacking the object must be “the only feasible way to terminate such support.” As the Report of Committee III notes, the former of these two cumulative requirements represents a higher standard than the one used in Article 52(2), where it suffices for an object to make “an effective contribution to military action” for it to become a military objective. The Report continues: Without trying to define the phrase in [Article 56], it seems clear that production of arms, ammunition and military equipment would qualify as direct support of military operations, but the production of civilian goods which may also be used by the armed forces probably would not qualify in the absence of most unusual circumstances.

This quotation may serve to demonstrate once again how much easier it is to arrive at the definite conclusion that an object, or an activity, is militarily important than that it is not. This is not because the military mind would simply be unwilling to concede the point that given objects or activities are definitely of no military interest; there is no such thing as “the military mind”, nor is there any particular unwillingness among military men to concede the point at issue; at all events, the quoted words were written by a lawyer who has never in his life been a member of the armed forces: Mr. George Aldrich, Rapporteur of Committee III. Rather, the explanation should be sought in the regrettable, though unavoidable, complexity of the concepts at issue in this Part of Protocol I, whether it be “civilian object”, “military action or operation”, or any other. Differentiation among the three categories of objects mentioned above is made as follows: (a) a dam or dyke will lose its special protection “only if it is used for other that its normal function”, (b) a nuclear power plant “only if it provides electric power…” and (c) an “other military objective” only if it is “used…”; followed, in each case, by the formula: “in regular, significant and direct support of military operations.” While the requirements under (b) and (c) are clear enough,

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been given, naming, in all appropriate cases, a reasonable time limit and after such warning has remained unheeded.” Identical provisions for the protection of civilian hospitals are found in Arts. 18 and 19 of the Fourth Geneva Convention of 1949. CDDH/215/Rev. 1, para. 91. Loc. cit.

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(a) is, as the Report of Committee III notes, “less clear than is desirable.” What is “the” normal function of a specific dam or dyke: is it merely, in the terms of the Report, “the function of holding back, or being ready to hold back, water” or does it encompass other functions which this particular dam or dyke in question has been designed to fulfil from the outset, such as carrying traffic across a river? Admittedly, the function described in the Report may be considered as the single common function of all dams and dykes, and Committee III in adopting the Report containing the quoted phrase may probably be taken to have understood the phrase “normal function” in that sense. Even then, it remains a regrettable fact that the Conference did not succeed in finding, as the Rapporteur of Committee III had hoped, a better and less ambiguous term. An interesting feature of the interpretation provided in the Report is that it does not stop at “holding back water” but adds in one breath: “being ready to hold back water”. This amounts to an implied recognition that even inner dykes fall under the protection of paragraph 1, i.e., protection against attack “if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population.” This condition, it is submitted, will be met for the inner dyke whenever it is fulfilled for the main dyke as well, as destruction of the one puts the civilian population as much in jeopardy as does destruction of the other. In its remaining paragraphs, Article 56: – reaffirms the right of “the civilian population and individual civilians … to all the protection accorded them by international law”, mentioning in particular the precautionary measures of Article 57 (para. 3); Ibid., para. 88. Loc. cit. On the occasion of the adoption by consensus of then Art. 49 (ultimately renumbered 56) Mr. Schutte, member of the Dutch delegation, emphasized that “[h]is delegation considered the interpretation of para. 2 of Art. 49 given by the Rapporteur … to be the correct one. Its support of the consensus on Art. 49 had been based on that assumption.” CDDH/III/SR. 31, 14 March 1975, para. 48; see too para. 46. 120 Loc. cit., note 116. 121 While para. 2 makes the cessation of special protection subject to the condition, inter alia, that an attack on the object “is the only feasible way to terminate” the “regular, significant and direct support of military operations” in which the object is being used, the second sentence of para. 3 adds that in the event of such attack “all practical precautions shall be taken to avoid the release of the dangerous forces.” In his report to Committee III, the Rapporteur hailed this provision as “one of the most important contributions of this article.” CDDH/III/264/Rev. 1 p. 6. Yet, the provision amounts to little more than an application to a specific case of the general obligation to “take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects” (Art. 57(2)(a)(ii)). In the Report of the Committee the eulogistic phrase of the Rapporteur is not found; the Report

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–

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Chapter 9 bans reprisals against any of the objects mentioned in paragraph 1 (para. 4); enjoins the Parties to the conflict to “endeavour to avoid locating any military objectives in the vicinity of the works or installations mentioned in paragraph I”, an exception being made for “installations erected for the sole purpose of defending the protected works or installations from attack” (para. 5); urges the Parties to the conflict “to conclude further agreements among themselves to provide additional protection for objects containing dangerous forces” (para. 6), and introduces a special sign with which the Parties to the conflict may, if they so wish, mark the objects protected by this Article, in order thus to facilitate their identification (para. 7).

Had the Arab delegations had their way, the special protection of Article 56 would cover “oil rigs, petroleum storage facilities, and oil refineries” as well. As the

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does, however, reproduce the further comment of the Rapporteur that “[g]iven the array of arms available to modern armies, this requirement should provide real protection against the catastrophic release of these forces.” CDDH/215/Rev. 1, para. 92. One could hope that only “modern armies” would find themselves confronted with the need to attack “works or installations containing dangerous forces”; indeed, the arms trade of our days seems to do its utmost to convert more and more armies into “modern armies” equipped with an array of the most sophisticated weapons. These defensive installations “shall not themselves be made the object of attack, provided that they are not used in hostilities except for defensive actions necessary to respond to attacks against the protected works or installations and that their armament is limited to weapons capable only of repelling hostile actions against the protected works or installations.” As the Report notes, this language is the outcome of “considerable discussion about the question of the types of armament to be permitted to the defensive installations,” It is submitted that the form of words ultimately accepted is far from providing a clear rule, nor is much clarification added by the concluding remark in the Report that “[t]hus, the use of weapons capable of attacking enemy forces passing at some distance from the protected work or installation is prohibited.” CDDH/215/Rev. 1, para. 93. At all events, the problem is on a completely different scale from that of the protection of military hospitals and ambulances. As provided in Art. 22 of the First Geneva Convention of 1949, the personnel of these establishments or units may be armed and use their arms in their own defence or in that of the wounded and sick in their charge, and in the absence of armed orderlies the establishment or unit may be protected by a picket or by sentries or by an escort. Para. 7 describes the special sign as “consisting of a group of three bright orange circles placed on the same axis”, referring for further specification to Art. 16 of Annex I to Protocol I. This Article provides, inter alia, that the sign shall be as large, and may be repeated as often, as appropriate under the circumstances; it should be visible from as many directions and from as far away as possible; it may be lighted or illuminated, and “may also be made of materials rendering it recognizable by technical means of detection.”

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Rapporteur notes in his report to Committee III, it was agreed in the Working Group “that these were not objects containing dangerous forces within the meaning of this article.” The proponents of this idea had earlier suggested that protection of the objects at issue could be achieved by including them among the “objects indispensable to the survival of the civilian population” of Article 54. Although no-one would of course deny the importance of oil, not only to the oil producing States but to “the whole international community, which depend[s] on oil in all spheres”, there was hardly any support for the suggestion that oil should be singled out for any form of special protection. The Rapporteur notes that he had “agreed to consult further with interested representatives on this question.” This he did, continuing his delicate negotiations with the “interested representatives” through the years that the Conference lasted. The final outcome of this debate is to be found in the Report of Committee III on its work during the fourth and last session of the Conference, where the fact is recorded that “a proposal concerning ‘General principles for the protection of oil and of installations for its extraction, storage, transport and refining’ … was withdrawn by its sponsors.” 3.4

Special Protection

As may be recalled, the above discussion of the “general protection of the civilian population” in Protocol I had as its point of departure the basic concept of respect and protection, translated right from the start into two somewhat less abstract, though still very fundamental principles: viz., the prohibition to make the civilian population, civilians or civilian objects the object of attack, and the obligation, in the conduct of military operations, to take constant care to spare the civilian population, civilians and civilian objects. From these basic tenets followed the whole intricate set of prescriptions examined above. It emerged that the protection they provide (at times in minute detail and with great subtlety of nuance, at other times in rather too vague and insufficiently precise terms) extends not only to the civilian population itself, but covers a wide range of objects and values, from houses and schools to the natural environment. Included among the protected objects are works or installations containing dangerous forces, even where these are military objectives, and other military objectives located at or in the vicinity of these works or installations; it was explained that in elaborating the idea of “general protection of the civilian population” the need had arisen to place these particular military objectives under special protection. 124 125 126 127 128

CDDH/III/264/Rev. 1 p. 6. CDDH/III/SR. 16, 10 Feb. 1975: Mr. El Ghonemy (Egypt). Loc. cit. Supra note 124. CDDH/407/Rev. 1, para. 12.

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There is, of course, nothing novel about the idea of special protection, even as applied to specified military objectives. While the basis of the idea – though not the term – can be found as early as the Geneva Convention of 1864 for the Amelioration of the Condition of the Wounded in Armies in the Field, instances of persons or objects benefiting from a regime of special protection abound in the Geneva Conventions of 1949 as well as in the Hague Convention of 1954 for the Protection of Cultural Property. One rather imperfect example is provided by the “hospital and safety zones and localities” and “neutralized zones” provided for in Articles 14 and 15 of the Fourth or Civilians Convention of 1949. The imperfection of these provisions as well as of Article 25 of the Hague Regulations of 1907 prohibiting the “attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended”, led the ICRC to include proposals for their improvement in its draft Additional Protocol I, as Chapter V (“Localities under special protection”) of Part IV on the “Civilian population”. Heavily amended, though not affected in their basic set-up, these proposals eventually became Articles 59 (“Non-defended localities”) and 60 (“Demilitarized zones”); together they form Chapter V, entitled “Localities and zones under special protection”. As explained at the outset of the introductory debate in Committee III by the ICRC representative, Mr. Mirimanoff-Chilikine, its proposals “had two purposes, first, to give absolute immunity to the civilian population against accidental or indirect effects of attacks directed at military objectives; and, secondly, to preserve the localities as such for the sake of their social, economic, cultural or scientific value.” Taking part in the same debate, Sir David Hughes-Morgan laid bare even deeper roots of the proposed Articles when he said that “[their] minimum aim … was to implement effectively the general rule of prohibiting attacks on civilians and civilian objects.” “Absolute immunity”, “effective protection from attack”: these are no small matters to achieve. Articles 59 and 60 seek to do this along the following lines. Article 59 spells out in its first paragraph that the Parties to the conflict may not “attack, by any means whatsoever, non-defended localities.” Though this language seems not to exclude localities situated in the hinterland even at a considerable distance from the combat zone, a much more restricted concept emerges from paragraph 2 where it is stated that “[t]he appropriate authorities of a Party to the 129 Both Articles were adopted by consensus in Committee III; CDDH/III/SR. 31, 14 March 1975, paras. 36, 37. 130 CDDH/III/SR. 23, 19 Feb. 1975, para. 3. 131 Ibid., para. 59; italics supplied. 132 There were some in Committee III “who wished to permit [non-defended localities] also in the hinterland”, as one among five tendencies that emerged with respect to the scope to be attributed to the concept under discussion; CDDH/215/Rev. 1, para. 108.

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conflict may declare as a non-defended locality any inhabited place near or in a zone where armed forces are in contact which is open for occupation by an adverse Party.” (Italics supplied) This leads to a clearer picture: an “inhabited place” situated in a zone of combat may be either defended or not. If it is defended, it will represent an obstacle to the advancing enemy, which will then attempt to overcome the armed resistance with the means at its disposal; indeed, it may be expected to commence these endeavours while it is still at some distance from the locality, directing its artillery fire or attacks from the air at suspected points of resistance and other military objectives located in the locality. On the other hand, if the “inhabited place” is not defended, the advancing enemy will be able to occupy the place without a blow, and there is, hence, no need for it to direct any attacks at targets in the locality, not even those carried out in advance and from a distance in preparation of capture. The prohibition in Article 59(1) of attacks on non-defended localities is no more than the translation into a legal norm of this lack of military necessity. In conformity with this theoretical construct, the representatives of the ICRC and of the Federal Republic of Germany argued in Committee III that the mere absence of defence of a given locality establishes its protected status. Theory apart, the question arises how a belligerent Party is to know that an “inhabited place near or in a zone where ground forces are in contact”, but which he has not yet actually reached, is in fact non-defended: without such knowledge, he will almost certainly treat the locality as though it were defended. The only effective way seems to be the one suggested, though not prescribed, in paragraph 2: viz., an express declaration emanating from the “appropriate authorities” and 133

CDDH/III/SR. 23, 19 Feb. 1975, paras. 7, 37. The ICRC Commentary on the Draft Additional Protocols to the Geneva Conventions of 12 Aug. 1949, published in 1973, states that “[b]y virtue of customary international law, non-defended localities are protected once their specific de facto ‘non-defence’ situation is established … Thus any subsequent agreement concluded by the Parties to the conflict is of a purely declaratory nature and can only strengthen the protection already due. This is implied by the wording ‘to facilitate the observance of this rule’ [this being the opening phrase of para. 2 of the draft Article, providing the possibility of a declaration on the part of the interested Party to the conflict]. The status of non-defended localities may be confirmed in an unopposed unilateral declaration … or in a special agreement…” (pp. 68-69). Similarly, Mr. Mirimanoff-Chilikine explained in his introductory statement in Committee III that “[u]nder the customary international law codified at The Hague, non-defended localities acquired that status as soon as the de facto situation of ‘non-defence’ came into being. That de facto situation was now described in article 52, paras. 2 and 5.” Mr. Josephi, speaking for the FDR, stated that his delegation “supported the ICRC view” in this respect. Earlier, support for this view had been provided by Professor Knut Ipsen in his contribution “Die ‘offene Stadt’ und die Schutzzonen des Genfer Rechts”, in Dieter Fleck (ed.), Beiträge zur Weiterentwicklung des humanitären Völkerrechts für bewaffnete Konflikte (1973) pp. 149196, at p. 160.

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addressed to the adverse Party. Such a declaration, once again from the theoretical point of view, will indeed be declaratory rather than constitutive in character; in other words, the declaration cannot of itself confer protected status on a locality which is not, in point of fact, “non-defended”. Paragraph 2 specifies the conditions for a locality to qualify as a “non-defended locality”: (a) prior evacuation of “all combatants, as well as mobile weapons and mobile military equipment”; (b) “no hostile use … of fixed military installations or establishments;” (c) “no acts of hostility … [on the part of ] the authorities or … the population”, and (d) “no activities in support of military operations.” Once all these conditions fulfilled and a unilateral declaration affirming its non-defended character addressed to the adverse Party, the protected status of the locality is perfect; the declaration states an existing situation: it does not represent an offer to enter into an agreement. Accordingly, although paragraph 4 of Article 59 obliges the recipient Party to acknowledge receipt of the declaration, it also directly obliges that Party to “treat the locality as a non-defended locality.” The merely declaratory character of the declaration is evident from the text following the quoted phrase: the last-mentioned obligation exists “unless the conditions laid down in paragraph 2 are not in fact fulfilled.” For completeness’ sake, mention is made here of the possibility, set out in paragraphs 5 and 6, for the Parties to the conflict to “agree on the establishment of non-defended localities even if such localities do not fulfil the conditions laid down in paragraph 2”, as well as of the self-evident statement in paragraph 7 that “[a] locality loses its status as a non-defended locality when it ceases to fulfil the conditions laid down in paragraph 2 or in the agreement referred to in paragraph 5” – a statement that is followed by the useful reminder that the loss of special protection does not entail total lawlessness: on the contrary, “[i]n such an eventuality, the locality shall continue to enjoy the protection provided by the other

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Para. 3 makes an exception for “persons specially protected under the Conventions and this Protocol, and of police forces retained for the sole purpose of maintaining law and order.” Examples of persons in the first-mentioned category would be wounded or sick combatants; the police forces have been mentioned to permit the presence of military police and because in many countries the police form part of the armed forces. These military installations or establishments need not have been dismantled or otherwise rendered inoperative: it will be up to the adversary, once he has occupied the locality, to dispose of these objects as he sees fit. In that event, the recipient Party “shall immediately so inform the Party making the declaration.” The Article contains no special provisions concerning the modus procedendi in such an impasse; notably, there is nothing about the possibility of thirdparty verification in loco, which might be the only way to determine objectively whether all four conditions of para. 2 are, or are not, fulfilled. On the other hand, the closer a locality claimed to be non-defended is to the zone of actual combat, the more difficult would it be to organize such outside verification.

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provisions of this Protocol and the other rules of international law applicable in armed conflict.” In sum, the detailed and well-balanced provisions of Article 59 undeniably represent a major improvement over the summary statement in Article 25 of the Hague Regulations that “[t]he attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.” While Article 59 rests on a fairly rigid concept (a situation of fact which, merely reaffirmed by a unilateral declaration notifying the fact, entails the protected status), Article 60 on “demilitarized zones” has been given the greatest possible flexibility. The starting-point of the Article, and at the same time the most striking contrast to the previous one, is that the status of demilitarized zones can solely be conferred by agreement, even, as paragraph 2 stipulates, express agreement; but the agreement may be concluded in any conceivable manner: “verbally or in writing, either directly or through a Protecting Power or any impartial humanitarian organization, and may consist of reciprocal and concordant declarations.” Demilitarized zones may not be attacked. This rule is so self-evident that it is not even spelled out in so many words in Article 60: it is in fact implicit in the general prohibition “for the Parties to the conflict to extend their military operations [to such zones], if such extension is contrary to the terms of the agreement” (para. 1). As the Report of Committee III explains, this text, like the Article in its entirety, “is intended to permit the establishment both of zones that must remain demilitarized no matter which party controls the area in which they are located and also zones that may lose their demilitarized character if occupied by the adverse Party.” This intention is also evident in paragraph 6, specifying that “[if ] the fighting draws near to a demilitarized zone, and if the Parties to the conflict have so agreed, none of them may use the zone for purposes related to the conduct of military operations or unilaterally revoke its status.” Although paragraph 3 provides a set of conditions that a demilitarized zone should normally fulfil, these conditions are not, as in the case of the non-defended locality of Article 59, obligatory in principle (nor, of course, does the fulfilment of the conditions by itself suffice to create the protected status). The opening phrase of the paragraph, stating that “[t]he subject of such an agreement shall normally be any zone which fulfils the following conditions …” was “inserted in paragraph 3 to permit the parties to agree upon zones which do not fulfil all the conditions of that paragraph.” Such agreement, the Report continues, “might be rare” but at all events “should not be discouraged by the text” of the Article. Like Article 59, Article 60 enumerates four conditions, with the first three being identical to those listed under (a)-(c) in Article 59. Only condition (d) is more stringent: while Article 59 merely excludes all “activities in support of mili137 138

CDDH/215/Rev. 1, para. 111. Loc. cit.

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tary operations”, paragraph 3 of Article 60 prescribes that “any activity linked to the military effort must have ceased.” As “the military effort” is a broad and altogether vague term (arguably, the activity of the lady who knits socks for the soldier at the front is “linked to the military effort”) the paragraph adds, not superfluously, that the Parties to the conflict “shall agree upon the interpretation to be given” to that particular condition. Conceivably, the Parties might agree to permit the activity of the aforementioned lady, to prohibit the production of armoured cars and even, probably, of ball-bearings and similar militarily important items, and to draw the line somewhere in between, depending on the local situation. Obviously, to achieve the desired protection, there should be no misunderstanding about the precise location of a demilitarized zone. Paragraph 2 of Article 60 accordingly suggests that the agreement establishing the zone “should define and describe, as precisely as possible, the limits of the demilitarized zone” and should also, “if necessary, lay down the methods of supervision.” Paragraph 5 provides that the Party in control shall mark the zone, “so far as possible, by such signs as may be agreed upon with the other Party”, and these signs “shall be displayed where they are clearly visible, especially on its perimeter and limits and on highways.” The consensual character of the demilitarized zone is emphasized once again in paragraph 7 of Article 60, according to which only “a material breach of the provisions of paragraphs 3 or 6” shall have the effect of releasing the other Party from its obligations under the agreement. As in paragraph 7 of Article 59, it is recalled that the loss of status does not deprive the zone of “the protection provided by the other provisions of this Protocol and the other rules of international law applicable in armed conflict.” Lastly, as the Rapporteur noted in his introductory statement prior to the consensus adoption of Article 60, it was the title to be given to the zones in question, rather than the substance of the rules regulating their protected status, which had given rise to controversy in the Working Group. In his report on the work of the Working Group he mentions other terms which had been considered in the Group besides the one finally retained: “demilitarized zone”. He then permits himself the rare liberty of placing on record a jocular suggestion he had made in the course of the debate in the Working Group; the passage deserves to be quoted in full:

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The Parties shall also agree upon “persons to be admitted to the demilitarized zone other than those mentioned in paragraph 4”, the latter being the same categories of specially protected persons and police forces mentioned in Art. 59(3). 140 CDDH/III/SR. 31, 14 March 1975, para. 37. 141 CDDH/III/264/Rev. 1, p. 8.

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The Rapporteur even suggested the term, “civilized zone”, but his idea, not surprisingly, received no support. The negative implications for the rest of the world outside of these zones were too stark to be tolerable.

The passage gives some indication of the exasperation which Mr. Aldrich, even more than others, must have felt at times when the discussion dragged on about matters of terminology rather than substance. Regrettably though perhaps not surprisingly, the passage was not reproduced in the official Report of Committee III. Section I (“General protection against effects of hostilities”) of Part IV (“Civilian population”) contains one further lengthy Chapter, viz., Chapter VI on “Civil defence”. In view of the specialized character of the subject-matter dealt with in this Chapter, it may suffice to note here that Article 61 on “Definitions and scope” defines under (a) “civil defence” as “the performance of some or all of the undermentioned humanitarian tasks intended to protect the civilian population against the danger, and to help it recover from the immediate effects, of hostilities or disasters and also to provide the conditions necessary for its survival” (followed by an exhaustive enumeration of fifteen “tasks”) and, under (b), “civil defence organizations” as “those establishments and other units which are organized or authorized by the competent authorities of a Party to the conflict to perform any of the tasks mentioned under sub-paragraph (a), and which are assigned and devoted exclusively to such tasks.” The order of sub-paragraphs (a) and (b) is significant; it was only after protracted battle that the decision could be reached to mention civil defence as a conglomerate of tasks first, and to deal with civil defence organizations only afterwards and as a consequence of the tasks. It thus became possible to bring under the latter heading the great diversity of organizations, military, para-military or civilian and whether permanently or temporarily assigned to any of the above tasks, that characterizes the situation with respect to “civil defence” in the various countries represented at the Conference. Both civilian and military civil defence personnel “shall be respected and protected” to the extent feasible 142 It was, in point of fact, assigned not to Committee III but to Committee II, as the one in whose competence it most specifically lay. 143 Namely: “(i) warning; (ii) evacuation; (iii) management of shelters; (iv) management of blackout measures; (v) rescue; (vi) medical services, including first aid, and religious assistance; (vii) fire-fighting; (viii) detection and marking of danger areas; (ix) decontamination and similar protective measures; (x) provision of emergency accommodation and supplies; (xi) emergency assistance in the restoration and maintenance of order in distressed areas; (xii) emergency repair of indispensable public utilities; (xiii) emergency disposal of the dead; (xiv) assistance in the preservation of objects essential for survival; (xv) complementary activities necessary to carry out any of the tasks mentioned above, including, but not limited to, planning and organization.” It will be noticed that the last-mentioned “task” renders the enumeration less exhaustive than it purports to be.

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(Articles 62, 67). In order to enhance the possibilities of respect and protection, a first requirement is, of course, that both personnel and objects are identifiable. Article 66 does not categorically oblige the Parties to the conflict to meet this requirement; rather, each Party “shall endeavour to ensure” that this is achieved. To that end, an “international distinctive sign of civil defence” has been agreed upon, defined in paragraph 4 of Article 66 as “an equilateral blue triangle on an orange ground”. Sections II (“Relief in favour of the civilian population”) and III (“Treatment of persons in the power of a Party to the conflict”) of Part IV will not be dealt with in detail here. This is not to detract in the slightest from the significance of these Sections. In point of fact, Section II on relief is a most valuable improvement on the relevant provisions of the Fourth Geneva Convention and, indeed, represents an indispensable complement to the first Section of Protocol I on general protection of the civilian population. Section III, for its part, embodies a large number of most important human rights-type provisions. Outstanding among these is Article 75 which under the title “Fundamental guarantees” reaffirms, in the context of international armed conflict, the right of all persons who are in the power of a Party to the conflict to be “treated humanely in all circumstances.” Paragraph 2 provides a list of acts which “are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents.” This is in effect an improved version of the list of prohibited acts in Article 3 common to the four Geneva Conventions of 1949. Paragraphs 3-7 contain a complete set of due process clauses applicable to persons arrested, detained or interned for reasons related to the armed conflict. To treat the matters covered by Sections II and III more fully would mean going well beyond the subject dealt with so far in this section of the present paper, i.e., the protection of the civilian population as an aspect of the actual conduct of hostilities. For this reason, the present writer feels justified in letting these Sections rest. 3.5

Civilian Population in Internal Armed Conflicts

Before passing on to the next subject, a moment’s attention should be given to the protection of the civilian population in Protocol II. As related in section I, in the course of its final session the plenary Conference adopted an Article on this subject (Art. 7 in the simplified Pakistan draft; Art. 13 in the final version of the Protocol) which in its opening paragraph states the fundamental principle that 144 Further regulations concerning the sign, and concerning the identity card which, according to Art. 66(3), civil defence personnel should be equipped with in “occupied territories and in areas where fighting is taking place or is likely to take place”, are found in Chapter V, on Civil Defence, of the Regulations concerning Identification, which form Annex I to Protocol I. 145 Art. 68 of Protocol I mentions specifically Articles 23, 55, and 59-62 of that Convention.

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“[t]he civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.” This statement of principle is followed by a set of provisions (paragraphs 2 and 3 of Article 13, Articles 14-18) which are incomparably more modest than those discussed above on the general protection of the civilian population in international armed conflicts. Retained are the rules that “the civilian population as such, as well as individual civilians, shall not be the object of attack” and that “[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited” (Art. 13(2)). However, the concept of indiscriminate attacks does not figure in the text, whether in its absolute or relative form. Similarly, there is no reference whatsoever to the protection of civilian objects in general. While the natural environment has equally been ignored, there are, on the other hand, simplified versions of the rules on protection of objects indispensable to the survival of the civilian population (Art. 14), works and installations containing dangerous forces (Art. 15), and cultural objects and places of worship (Art. 16). Article 17 on forced movement of civilians is also highly relevant; paragraph 1 prohibits to order “[t]he displacement of the civilian population … for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand”, and in the latter case “all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition.” While, thus, displacements of the civilian population are only exceptionally permitted within the territory of the State, paragraph 2 categorically prohibits compelling civilians “to leave their own territory for reasons connected with the conflict.” The last Article in this Part of Protocol II, Article 18 on “Relief societies and relief actions”, concerns the grave problem of humanitarian action in internal armed conflict. The country being torn apart both politically and militarily by the ongoing struggle, each side will be inclined to qualify as support to the enemy any aid given to the other side, no matter how exclusively humanitarian. This will jeopardize not only the safety of the person lending assistance, but the whole idea of humanitarian aid. Then again, the Red Cross Society in the country may find it impossible to maintain its unity – one of the fundamental Red Cross principles. Paragraph 1 of Article 18 seeks to remedy this situation to the maximum extent feasible by laying down that “[r]elief societies located in 146 A curious detail is that here, as in Art. 56 of Protocol I, works and installations are protected “even where these objects are military objectives.” In effect, the distinction between civilian objects and military objectives figures nowhere in the text of Protocol II, let alone that a definition of the latter category of objects is provided. This may be a consequence of the haste with which the final version of Protocol II was put together. 147 “Unity” is the sixth of seven fundamental principles adopted by the XXth International Conference of the Red Cross, held in Vienna, 1965. Its meaning is described as fol-

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the territory … such as Red Cross (Red Crescent, Red Lion and Sun) organizations, may offer their services for the performance of their traditional functions in relation to the victims of the armed conflict.” The civilian population too “may, even on its own initiative, offer to collect and care for the wounded, sick and shipwrecked.” Although this cautious language does not lay any obligation on the contesting parties to accept such offers, it does prevent them from regarding these as unfriendly – let alone punishable – acts. Moreover, once having accepted such offers, they will be precluded from treating the actual performance of the named humanitarian tasks as reprehensible aid to the enemy. Paragraph 2 of Article 18 is designed to create an opening for relief actions in favour of the civilian population if this “is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies.” For such a grim situation, where thousands of civilians may be exposed to death from starvation or unchecked disease, the paragraph provides that relief actions “which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned”. The requirement of consent represents yet another unavoidable bow to the sovereignty of the state. One can only hope that the description of the factual situation endangering the civilian population, combined with the express limitation to exclusively humanitarian, impartial and non-discriminating relief actions, will render it morally difficult, if not impossible, for the “High Contracting Party” to refuse its consent, even if the main or sole beneficiaries of the aid would be civilians in enemy-held territory. As may be evident from the above paragraphs, Articles 13-18, together constituting Part IV (“Civilian population”) of Protocol II, cover a lot of ground. They do this far more summarily and with infinitely less detail than do the comparable Articles of Protocol I. Yet, if they are faithfully implemented by the conlows: “There can be only one Red Cross Society in any one country. It must be open to all. It must carry on its humanitarian work throughout its territory.” 148 The term “organizations” was deliberately chosen instead of “Societies”, to leave the possibility for a non-recognized Red Cross “organization”, established in the course of the conflict in one part of the country (probably in the part held by the insurgents) to be permitted to function despite the obvious infringement of the principle of unity. 149 The opening Article of the preceding Part III (“Wounded, sick and shipwrecked”), Article 7 on “Protection and care”, lays down the -fundamental principles that “All the wounded, sick and shipwrecked, whether or not they haven taken part in the armed conflict, shall be respected and protected”, that they “shall be treated humanely and shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition”, and that “There shall be no distinction among them founded on any grounds other than medical ones.” Article 10 (“General protection of medical duties”) spells out that no-one “shall be punished for having carried out medical activities compatible with medical ethics, regardless of the person benefiting therefrom.”

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tending parties, the fate of the civilian population in any country struck by an internal armed conflict will be far less horrid than is often the case in what tends to be a particularly ruthless type of war. A similar remark should of course be made with respect to the whole complex of principles and detailed rules for the protection of the civilian population, laid down in Part IV of Protocol I for the event of international armed conflict. There too, all will depend on the faithful implementation of what was so ingeniously devised to save the civilian population from the ever-increasing devastation inflicted by modern warfare: after the participants to the Conference, it will be the turn of the participants in actual hostilities to demonstrate their willingness to take, in the terms of Article 57(1), “constant care … to spare the civilian population, civilians and civilian objects.” 4

Methods and Means of Warfare

The subject-matter discussed in this section is mainly that of Part III, Section I (“Methods and means of warfare”) of Protocol I. Section II (“Combatant and Prisoner of war status”) was examined in section II of this paper. It may also be stated at the outset that Protocol II contains no provision comparable to those of Protocol I, Part III, Section I. The first two Articles of the Section (35 and 36) discuss methods and means of warfare in general, and the remaining Articles (37-42) the employment of specific methods. Article 35, entitled “Basic rules”, provides fundamental principles governing the employment of all methods and means of warfare, whereas Article 36, incorrectly (because too narrowly) entitled “New weapons”, deals with the question of the responsibility of States for the development etc. of new methods and means of warfare. The opening paragraph of Article 35 reads: “In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.” This text provides a reaffirmation, as well as a significant development, of the rule laid down in Article 22 of the Hague Regulations of 1899/1907 that “[t]he right of belligerents to adopt means of injuring the enemy is not unlimited.” The phrase “methods or means of warfare” is doubtless considerably broader than “means of injuring the enemy”. Yet, the new formula passed without opposition: evidently, no delegate was willing to argue that there are no limits to the right of belligerent Parties to choose methods (as opposed to means) of warfare, nor that any limits on his right of choice should be confined to methods or means to the extent that these affect the adverse armed forces (“the enemy”, in a narrow sense) rather than the adverse Party in its entirety, including the civilian population (“warfare”). The principle expressed in paragraph 1 is as abstract as it is vague; as the representative of Mongolia pointed out in the introductory debate on the draft Article in Committee III, “the concept of ‘unlimited right’, like that of limited

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right, would remain imprecise so long as no specific criteria for defining it had been adopted.” Yet, its reaffirmation and development in Protocol I is a far from empty gesture; it means exactly what it says, viz., that there are limits to the right of belligerent Parties to choose methods as well as means of warfare, and this in all armed conflicts. Since the scope of Protocol I is restricted to international armed conflicts, the term “all armed conflicts” can only have the meaning of all international armed conflicts, no matter how they are waged – as conventional wars between regular armies or as guerrilla wars; or whether they are between independent states or between a colonial power and the people in the colony struggling for self-determination. This is an important clarification and, indeed, amounts to an implicit rejection of the argument advanced by some mainly Third World delegates, that the Article as drafted by the ICRC (which did not contain the express reference to “all armed conflicts”) solely “envisaged a conventional war situation.” One step down on the scale of abstraction is paragraph 2: “It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.” Like the preceding paragraph, this one too both reaffirms and develops pre-existing law, viz., the prohibition in Article 23(e) of the Hague Regulations of 1907 to “employ arms, projectiles, or material calculated to cause unnecessary suffering” (or, in the earlier English translation of the text of 1899, “of a nature to cause superfluous injury”). The main addition is, of course, the reference to methods of warfare as well as the means, described here as weapons, projectiles and material. This time the extension did not go uncontested. The Australian delegation formally opposed it, first, by introducing in Committee III an amendment to delete the “methods”; subsequently, once the text had passed unaltered in this respect through the Working Group, the delegation elicited a separate vote on the words “and methods of warfare” – a vote it lost by 58 votes to one, with 7 abstentions. As Mr. Cameron, speaking for the Australian delegation, explained after the vote, “the inclusion of those words … marked a substantial and unexplored extension to the law.” Indeed, it was the lack of exploration, in Committee III or in the Working Group, of the

150 151 152 153 154

CDDH/III/SR. 26, 27 Feb. 1975, para. 26. CDDH/III/SR. 27, 3 March 1975, para. 18: Mr. Rabary (Madagascar). CDDH/III/237; see CDDH/III/SR. 26, 27 Feb. 1975, para. 8: Mr. Mahony (Head of the delegation of Australia). CDDH/III/SR. 38, 10 April 1975, para. 7. Ibid., para. 51. Mr. Cameron added that “[h]is delegation had abstained from voting on article 33 [35 in the final version] for that reason.” This is a somewhat surprising remark, in view of the fact that the Article had just been adopted by consensus (ibid., para. 7); it may go to show once again that a “consensus vote”, no matter how indispensable to expedite matters in international conferences, is far from being perceived by the participants as a registration of unanimity.

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consequences of the extension which more than anything else had prompted the Australians to maintain their negative stand in the matter. In support of the Australian opposition, it should be recognized that the norm of customary international law embodied in Article 23(e) of the Hague Regulations traces its origin to the Declaration of St. Petersburg, 1868, renouncing the use of certain light projectiles. The preamble of this Declaration contains the following considerations: That the progress of civilization should have the effect of alleviating as much as possible the calamities of war; That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; That for this purpose it is sufficient to disable the greatest possible number of men; That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable; That the employment of such arms would, therefore, be contrary to the laws of humanity.

The Declaration of Brussels, 1874, and subsequently the Hague Regulations, reduced this ornate language to the more sober formulations of principle quoted above as Articles 22 and 23(e) of the latter instrument. More importantly, the participants at the Hague Peace Conferences related these principles to specific prohibitions on the discharge of projectiles and explosives from balloons, the use of asphyxiating or deleterious gases and the use of expanding bullets – and never to any prohibited methods of warfare. Indeed, this was not done in any other international forum prior to the Diplomatic Conference of 1974-1977. The extension to methods, therefore, represents a rather sudden and, indeed, largely unexplored extension of the law. Thanks to the Australian delegation, it did not go unnoticed; the absence of further comment, either in the summary records or in the Report of Committee III, can probably be attributed to the general feeling that the new rule, though terra incognita, is not likely to prove particularly dangerous ground. More precisely, it is difficult to imagine on what substantive grounds one could plausibly have objected to the prohibition of methods of warfare “of a nature to cause superfluous injury or unnecessary suffering”, now that means of such a nature have been so prohibited for over a century. The sole argument that means are tangible and, therefore, easier to assess than methods, 155

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The Parties to the Declaration engaged “mutually to renounce, in case of war among themselves, the employment by their military troops of any projectile below a weight of 400 grammes, which is either explosive or charged with fulminating or inflammable substances”; for text, see: Schindler & Toman, op. cit. note 21, p. 95. Articles 12 and 13(e) of the Declaration of Brussels; ibid., at p. 29.

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surely could not be taken seriously: the tangibility of means notwithstanding, it has proved exceedingly difficult over the years to determine which ones are, and which ones are not, of such a nature as to fall within the purview of the prohibition in Article 23(e), Hague Regulations. It will be readily seen that this difficulty of determination is the result of the vagueness of the norm itself. We may leave aside, as no longer particularly relevant, the difficulties that arose in the past from the unfortunate translation of the phrase “propres à causer des maux superflus” in the authentic French text of the 1907 Hague Regulations, into “calculated to cause unnecessary suffering”: the wording of the present Article 35(2) sets matters right in this respect. This leaves the question wide open, however, what is to be understood by “superfluous injury or unnecessary suffering”. Perhaps not surprisingly, the Conference records contribute precious little to a clear understanding of this phrase. After all, it was not new law that was being created, and Mr. Baton, speaking for the United Kingdom, rightly noted that, while corrections had now been made to the “somewhat erroneous translation” of the French text of 1907, “the original wording in the French text had been retained”, so that he “saw no change in the meaning which had been, and was now, given to the expression ‘propres à causer des maux superflus’” and, by inference, to the English equivalent, “superfluous injury or unnecessary suffering”. It seems plausible that for this reason most delegates preferred to remain silent on what has always been, and continues to be, a thorny question. There were a few exceptions to this general pattern of silence, however. Speaking in explanation of vote after Committee III had adopted Article 35 by consensus, Mr. Cristescu (Romania) stated that in his opinion “the only valid interpretation of the provisions of paragraph 2 of article [35] was that made in the light of provisions of international law unanimously accepted in the St. Petersburg Declaration … in accordance with which the only legitimate goal that States should set themselves in time of war was the weakening of the enemy’s

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While the British delegate. Sir David Hughes-Morgan estimated that “it might perhaps be better … to say ‘injury’ instead of ‘suffering’” (CDDH/III/SR. 26, para. 28), the words “unnecessary suffering” were nonetheless retained besides “superfluous injury” because they had become part and parcel of customary law and were, moreover, deemed to add a useful nuance to the concept of “superfluous injury”. As noted in the Report of Committee III, “the French, ‘maux superflus’ … includes both physical and moral injury.” CDDH/215/Rev. 1, para. 21. The element of calculation, on the other hand, was dropped without a word of comment; interestingly, at the Lucerne Conference of Government Experts on the Use of Certain Conventional Weapons (24 Sept. – 18 Oct. 1974), one expert had argued in favour of its retention, because “without it weapon designers might not always refrain from deliberately designing weapons that would cause unnecessary suffering.” ICRC, Report of the Conference (1975), para. 22. CDDH/III/SR. 38, para. 50.

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military forces …” Mr. Herczegh (Hungary), speaking in the same vein but with even greater precision, placed on record that in his delegation’s view “the unnecessary suffering to which reference was made in that article could be interpreted as suffering the gravity of which exceeded what was strictly necessary in order to render an enemy hors de combat, which was the only legitimate goal that the St. Petersburg Declaration of 1868 allowed a State at war.” It should be noted that Mr. Herczegh’s words provide neither a literal quotation from, nor even a completely accurate reflection of the famous preambular paragraphs to the St. Petersburg Declaration. There is a considerable difference between, on the one hand, a rule permitting “to disable the greatest possible number of men” and then drawing the line at “the employment of arms which uselessly aggravate the sufferings of disabled men or render their death inevitable” and, on the other hand, a rule permitting only that which is “strictly necessary in order to render an enemy hors de combat”: it is, basically, the difference between a primarily collectivistic and an exclusively individualistic approach (or, what might amount to the same thing, between an essentially realistic and a somewhat more idealistic approach). Be this as it may, the remarks made by Messrs. Cristescu and Herczegh were first of all an attempt to revive a debate that had been held a few months earlier, in the course of the Conference of Government Experts on the Use of Certain Conventional Weapons (Lucerne, 24 September – 18 October 1974). The quoted speakers drew no response in Committee III, and as this might leave the impression that their interpretation of “superfluous injury or unnecessary suffering” was the only valid and generality accepted one, it seems necessary to set the record straight by quoting at some length from the relevant paragraphs in the Report of the Lucerne Conference: A question of particular importance was what injury should be considered as superfluous, what suffering as unnecessary. There was widespread agreement among the experts that this involved some sort of equation between, on the one hand, the degree of injury or suffering inflicted (the humanitarian aspect) and, on the other, the degree of necessity underlying the choice of a particular weapon (the military aspect). It was also widely agreed that the equation would often be a particularly difficult one, as neither side of the equation could easily be reduced to precise figures and as, moreover, the two sides were so different that they were hard to compare. 159 Ibid., para. 38. 160 Ibid., para. 39. The point is also reflected in the Report of the Committee, CDDH/215/ Rev. 1, para. 21. 161 The present writer reported on that Conference and on the debate concerning unnecessary suffering in particular, in 6 NYIL (1975), at pp. 89-90. 162 Report of the Conference (1975), paras. 24-27.

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This ostensibly academic debate, the merest shadow of which was reflected in the proceedings of Committee III (supra), assumes its full practical significance in connexion with the discussions which were going on at the same time, and which have continued since, on the much more concrete question of whether and to what extent prohibitions or restrictions should be placed on the use of specified conventional weapons. To examine this question, the ICRC had convened the aforementioned Lucerne Conference of Government Experts, and it subsequently convened a second session of that Conference at Lugano, from 28 January to 26 February l976. The Diplomatic Conference, for its part, had established an Ad Hoc Committee for the same purpose, and this pursued its task throughout all four sessions of the Conference. When the Diplomatic Conference drew to a close in 1977 nothing spectacular had been accomplished in this domain. As the records show, the sole subject on which consensus seemed to have been virtually achieved was the prohibition “to use any weapon the primary effect of which is to injure by fragments which in the human body escape detection by X-rays.” As Mr. de Graffenried, speaking 163 7 NYIL (1976) pp. 197-206. 164 CDDH/IV/210, proposal made in 1976 by Austria, Mexico, Norway, Sweden, Switzerland and Yugoslavia; Denmark, Colombia and Spain subsequently became co-sponsors (CDDH/IV/210/Add. 1 & 2). See, for discussion of the proposal during the closing session of the Conference, the Report of the Working Group of the Ad Hoc Committee, CDDH/IV/224/Rev. 1, paras. 7-10, and the Report of the Ad Hoc Committee, CDDH/408/Rev. 1, para. 7. For earlier deliberations, see Report

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for the Swiss delegation in the Ad Hoc Committee had explained in the course of the third session, “[t]he proposal was essentially a humanitarian one, designed to reduce unnecessary suffering”: the “severe medical complications” produced by the presence of such fragments in the human body “were not justified by military necessity, since they went beyond the minimum required to put the enemy out of action.” This was as clear a reference as any to the criterion of unnecessary suffering and the earlier debate on that subject in the Lucerne Conference. Mr. de Graffenried made the point even more explicit when he explained later on that the purpose of the proposal was not to prohibit the use of certain modern weapons, such as land mines provided with a casing of “material consisting solely or mainly of atoms of low weight, such as wood, glass and particularly plastic”, so that the mines would escape detection; rather “[t]he intention was … to eliminate some of their effects. That could be done by adding atoms of higher weight to the materials in question to render fragments detectable by X-ray but not by mine detectors. Thus, the balance between military needs and humanitarian requirements would be achieved.” Besides this proposal on “non-detectable fragments”, none of the other proposals – on napalm and other incendiary weapons, mines and booby-traps, small calibre projectiles, fléchettes, anti-personnel cluster warheads and similar devices, and fuel-air explosives – commanded such widespread agreement verging on unanimity. Many of them were, moreover, oriented wholly or in part towards a different criterion, viz., indiscriminateness. Like the criterion of unnecessary suffering, this had been hotly debated at the Lucerne Conference. The main points of contention at the time had been whether there existed, as a rule of positive international law, a prohibition to use “indiscriminate weapons” and, if so, how that prohibition was to be applied. While a number of experts answered the former question in the negative, an even greater number of them were extremely sceptical with regard to the latter question: Except for the case of a weapon intentionally designed to follow a random course and at the end of its trajectory hit whatever object happened to be there, all conventional weapons could be used in circumstances where the risk of hitof the Lugano session of the Conference of Government experts (Geneva, 1976), Part I, paras. 49-50; Part II, Ninth Meeting; Part III, paras. 77-82; Part IV, doc. COLU/ 212 (Mexico and Switzerland); and CDDH/237/Rev. 1: Report of the Ad Hoc Committee, 3rd session, paras. 23-24. 165 CDDH/IV/SR. 25, 13 May 1976, para. 3; Mr. de Graffenried repeated and elaborated on this statement in the meeting of 27 May 1976, CDDH/IV/SR. 31, paras. 29-32. 166 CDDH/IV/SR. 31, para. 32; italics supplied. 167 See, in particular, CDDH/IV/226: Comparative Table of Proposals and List of Information Documents, produced by the secretariat of the Conference and published on 6 June 1977. 168 Report of the Lucerne Conference, para. 30.

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As this quotation shows, the key element in discussions about the indiscriminateness of given weapons, or methods of use of weapons, resides in the protection of the civilian population against the effects of hostilities. This point is accentuated by the place given to the criterion of indiscriminateness in Protocol I: while Article 35, on “Basic rules” concerning methods and means of warfare, remains entirely silent on the subject, Article 51 (“Protection of the civilian population”) qualifies, as we have seen, as “indiscriminate attacks”, inter alia, “those which employ a method or means of combat which cannot be directed at a specific military objective” and “those the effects of which cannot be limited as required by this Protocol.” All the .more striking, given the silence of Article 35 on the basic principle of discrimination, is the express prohibition in paragraph 3 of the employment of “methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.” As we have seen, this prohibition is identical to the one embodied in Article 55, except for the added element of “prejudice to the health or survival of the population” in that Article. In view of the comments on Article 55 made in the previous section of this paper, there is no need for further comment on paragraph 3 of Article 35. 4.1 Conventional Weapons Reverting to the subject-matter dealt with by the Ad Hoc Committee on Conventional Weapons, it may be evident from the foregoing that not nearly as much had been accomplished by the Ad Hoc Committee as by the other main Committees. No text had been formally adopted, not even on the nondetectable fragments, and most proposals were still the subject of considerable controversy. The Conference in its 57th plenary meeting, on 9 June 1977, registered this situation in Resolution 22 on the “Follow-up Regarding Prohibition or Restriction of Use of Certain Conventional Weapons.” In a preambular paragraph, the Resolution expresses the conviction of the Conference “that the suffering of the civilian population and combatants could be significantly reduced if agreements can be attained on the prohibition or restriction for humanitarian reasons of the use of specific conventional weapons, including any which may be deemed to be excessively injurious or to have indiscriminate effects.” Then, in a careful analysis of the results obtained so far, it notes “that agreement exists” with respect to the question of non-detectable fragments, “that there is a wide area of agreement with regard to land-mines and booby-traps”, that effort had been devoted “to the further narrowing down of divergent views on the desirability of

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prohibiting or restricting the use of incendiary weapons, including napalm”, that the effects had been considered “of the use of other conventional weapons, such as small calibre projectiles and certain blast and fragmentation weapons” and that consideration had begun “of the possibility of prohibiting or restricting the use of such weapons.” The work should continue, the Resolution says, and those involved “should, in each case, seek the broadest possible agreement.” After all these preambular considerations, the Resolution recommends in its third operative paragraph “that a Conference of Governments should be convened not later than 1979 with a view to reaching: (a)

(b)

agreements on prohibitions or restrictions on the use of specific conventional weapons including those which may be deemed to be excessively injurious or have indiscriminate effects, taking into account humanitarian and military considerations; and agreement on a mechanism for the review of any such agreements and for the consideration of proposals for further such agreements.

In its remaining paragraphs, the Resolution recommends that the necessary steps should be taken with a view “to establish[ing] the best possible basis for the achievement at the Conference of agreements as envisaged in this resolution” (para. 6). Acting on these recommendations, the UN General Assembly decided in December 1977 to convene a United Nations Conference in 1979 for the purposes set out in paragraph 3 of Resolution 22, and to convene a UN preparatory conference which “should meet once in 1978 for organizational purposes and, subsequently, with the task of establishing the best possible substantive basis for the achievement at the United Nations conference of agreements as envisaged in the present resolution and of considering organizational matters relating to the holding of the United Nations conference.” At the time of writing, the preparatory conference is about to begin its work at Geneva, where it will meet from 28 August – 15 September 1978. Its task will be far from easy, and thorny questions will have to be settled. The thorniest issue of all may be the voting procedure; should there be a consensus for all substantive decisions, or should a majority vote suffice? As noted above, Resolution 22 of the Diplomatic Conference expressed the belief that the further work “should, in each case, seek the broadest possible agreement”; and GA Resolution 32/152 echoes this belief. To one group of States, with many Western States among them, the idea of “broadest possible agreement” implies 169 Res. 32/152, 19 Dec. 1977, adopted by 155 votes to none, with 21 abstentions. The Resolution takes note, inter alia, of the Report of the Secretary-General on the work done by the Diplomatic Conference during its 4th session with regard to the subject-matter at hand, A/32/124, 8 Sept. 1977. 170 Operational para. 1.

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that consensus should be required in each case: only thus, these States argue, can a prohibition or restriction on the use of a specific conventional weapon be expected to achieve its purpose. Conversely, an agreement with no more than a majority vote behind it risks remaining without effect, especially if important States are among those which did not cast an affirmative vote. Another group of States, convinced of the desirability of the agreements they seek to achieve, feel that to accept a consensus rule would be tantamount to bowing to the will of an erring minority. Time will show which side wins the argument and, subsequently, what comes of the 1979 United Nations Conference. In the meanwhile, some attention may usefully be given to an aspect of the question of “means and methods of warfare” which, like other aspects of that question, is as old as the St. Petersburg Declaration (at least as far as “means” are concerned) and which re-emerged as a topical issue at the time of the recent Diplomatic Conference. The criterion of superfluous injury or unnecessary suffering is vague and difficult to apply, and so is that of indiscrimination. The International Military Commission which met at St. Petersburg in 1868 had these principles in mind when it “fixed the technical limits at which the necessities of war ought to yield to the requirements of humanity” and, applying these limits to the newly developed Russian bullet which exploded on contact with a soft surface such as the human body, prohibited the use of explosive projectiles and of those charged with fulminating or inflammable substances, up to a weight of 400 grammes. The makers of the Declaration recognized at the same time, however, that weapon developments were likely to continue and that there was no guarantee that these developments would respect the established principles in all cases. Without setting up any institutionalized structure for that purpose (as would have been hardly thinkable at the time) the Contracting Parties therefore laid down in so many words that they “reserve[d] to themselves to come hereafter to an understanding whenever a precise proposition shall be drawn up in view of future improvements which science may effect in the armament of troops, in order to maintain the principles which they have established, and to conciliate the necessities of war with the laws of humanity.” Science has indubitably effected many improvements in the armament of troops, and this with a measure of regularity and increased intensity which stand in sharp contrast to the paucity of understandings arrived at over the same period with a view to maintaining the balance between the necessities of war and the laws of humanity. The widespread dissatisfaction with this situation which had become apparent in many countries, especially since the Vietnam war, could not fail to lead to attempts, not only to place bans or restrictions on the use of certain existing conventional weapons, but to establish some sort of mechanism for the review of future weapon developments.

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Supra, loc. cit. note 155.

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Evaluation of new weapon designs in the light of existing legal criteria is widely regarded as a duty of the national authorities in the first place, and the same goes for new methods of warfare. Article 36 of Protocol I expresses this view in the following terms: In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.

This obligation, applicable as much in time of peace as of war, is already being met by several states which have established official procedures for that purpose. As the Report of Committee III explains, the reference to “some or all circumstances” is not meant to imply a duty for States “to foresee or analyse all possible misuses of a weapon, for almost any weapon can be misused in ways that would be prohibited.” Rather, “the article is intended to require States to analyse whether the employment for its normal or expected use would be prohibited under some or all circumstances.” Evidently, moreover, “[d]etermination by any State that the employment of a weapon is prohibited or permitted is not binding internationally but it is hoped that the obligation to make such determinations will ensure that means or methods of warfare will not be adopted without the issue of legality being explored with care.” The lack of international binding force for any determination unilaterally made by a State under Article 36 inevitably leads to the further question whether the establishment of an international review mechanism was contemplated at the Conference. The answer is affirmative, but it should immediately be added that no positive result emerged from the discussions on this particular issue. While the experts participating in the Lucerne Conference, 1974, directed their attention to the need for national review in the first place, the delegation of Pakistan in 1975, in the course of the second session of the Diplomatic Conference, introduced a proposal for an international approach. The suggestion was welcomed by several speakers in Committee III, most explicitly by Mr. Blix (Sweden), who stressed that national evaluation of weapon developments was inadequate “and should be supplemented by international machinery.” He added that a provi172 173 174 175

CDDH/215/Rev. 1, para. 31; italics supplied. Ibid., para. 30. Report of the Lucerne Conference, paras. 277-281. The proposal was for an amendment of draft Art. 33 (later Art. 35); it envisaged periodic meetings of the Contracting Parties under the auspices of the ICRC, with a view to prohibiting, as the occasion arose, particularly reprehensible means or methods of warfare; CDDH/III/11, see also CDDH/III/SR. 26, 27 Feb. 1975, para. 4.

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sion on this matter could be placed in the article on “new weapons” or in that on amendment of Protocol I, which, as drafted by the ICRC, already provided the possibility of future conferences being convened by the depositary to consider proposed amendments to the Protocol; indeed, it could even be placed in a separate Protocol on conventional weapons. The matter was next taken up at the Lugano Conference, 1976, notably by a working group on “general and legal questions” where Mr. Kussbach (Austria) introduced an informal proposal for a clause on review conferences to be attached to a future agreement (or agreements) on conventional weapon limitations – the last-mentioned of Mr. Blix’s suggestions. Another particularly active participant in the debate on conventional weapons, Mr. de Icaza (Mexico) formally proposed that the Diplomatic Conference “grant this Conference of Government Experts permanent status in order that it may, in accordance with the terms of reference granted to it, continue working for the conclusion of agreements to prohibit the use of conventional weapons likely to cause unnecessary suffering or to have indiscriminate effects.” An interesting though unlikely suggestion, as it seems hard to understand how a temporary diplomatic conference could grant permanent status to another conference, no matter how expert. In 1976 the matter was broached in the Ad Hoc Committee of the Diplomatic Conference. The first speaker to bring it up was Brigadier Anemaet of the Netherlands delegation. On behalf of his Government he suggested “to set up some sort of independent institute to collect information on the possible and actual effects of certain conventional weapons.” Such an institute, possibly linked up with the ICRC, the World Health Organization or the UN Secretariat or even set up as an independent UN institute, “could organize conferences at regular intervals, or whenever a certain number of countries thought it advisable, in order to decide upon common rules” regarding the use of specified conventional weapons. The suggestion drew some favourable comment. At the same time, other delegates mentioned different solutions; thus, the Mexican delegate, reverting to an idea launched previously by Mr. Blix, considered that failing other solutions, “the most suitable formula might perhaps be to include in article 86 of draft additional Protocol I [i.e. the article on amendment] a provision for the ICRC to organize at regular intervals and on a permanent basis, or in the intervening period at the request of a specified number of the High Contracting Parties, a meeting open to all the Parties to the Conventions [of Geneva of 1949] and the 176 CDDH/III/SR. 27, 3 March 1975, paras. 53, 54. The Article on amendment (86 in the ICRC draft, 97 in the final version) is in Part VI, “Final provisions”. 177 Report of the Lugano Conference, pp. 125, 144-146. 178 Ibid., p. 183: COLU/210. 179 CDDH/IV/SR. 33, 1 June 1976, paras. 37-39; see, too, Report of the Ad Hoc Committee, 3rd session, CDDH/237/Rev. 1, para. 58.

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Protocol to review the provisions of articles 33, 34 and 35 of draft Protocol I [3537 in its final version] and the possible prohibition or restriction of weapons that caused unnecessary suffering or had indiscriminate effects or were by their nature treacherous”: such meetings would have the character of expert meetings and would serve to prepare the ground for subsequent diplomatic conferences on the same topics. Then, as late as 26 April 1977, something like a bomb was exploded on the Diplomatic Conference when Mexico and ten other delegations tabled a proposal in Committee I for a new Article 86bis to be included in Part VI (“Final provisions”) of Protocol I after the Article on amendment. The proposal envisaged the establishment of a Committee of States Parties to the Protocol, the task of which would be “to consider and adopt recommendations regarding any proposal that one or more State Parties may submit concerning the prohibition or restriction of the use of conventional weapons that may cause superfluous injuries or have indiscriminate effects.” The proposal made provision for ICRC participation in, and secretarial assistance to, the work of the Committee, and it envisaged special conferences being convened on the basis of the recommendations of the Committee, “to adopt agreements that implement the principle that the Parties to the conflict do not have an unlimited right of choice of means of combat.” Though the proposal could hardly have come as a complete surprise to those who had closely followed the preceding deliberations both at Lugano and in the Ad Hoc Committee, a number of delegations in Committee I reacted as if stung by a wasp. As is usual in international conferences, these reactions first of all assumed the shape of objections on grounds of procedure: the subject-matter of the proposal properly belonged in the Ad Hoc Committee, Committee I lacked competence to discuss it. In the next meeting, on 27 April 1977, the Chairman announced however that “unofficial talks … had led him to believe that a consensus would be possible” on a procedure the main elements of which were that the proposed new Article would be debated in Committee I like other draft Articles and would be examined by one of the working groups of Committee I after the 180 CDDH/IV/SR. 33, para. 19; Report, para. 59. 181 CDDH/I/340; the co-sponsors were Bolivia, Ecuador, Guatemala, Honduras, Iran, Nicaragua, Philippines and Spain; in the days that followed, Egypt, Peru and Venezuela (Add. 1), Sudan and Yugoslavia (Add. 2) and Iraq and Pakistan (Add. 3) joined the ranks of the co-sponsors. 182 Statements to that effect were made by delegates of France, Italy, the United Kingdom, Canada and Hungary. Other delegates strongly defended the competence of Committee I in the matter; strikingly, the Romanian delegate was among them, thus demonstrating the independent posture of his country in matters of international politics: the Soviet bloc had from the outset consistently argued that no new machinery was needed or, indeed, acceptable, as the Conference of the Committee on Disarmament or CCD already existed and was perfectly, and alone, competent to deal with matters of armament and disarmament. The entire debate is recorded in CDDH/I/SR. 68, 26 April 1977.

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working group had finished its other business. The absence of negative reactions confirmed him in this belief, so that he could “consider that his proposal was adopted by consensus.” After Mr. Bloembergen (Netherlands) had taken the floor to announce that “his delegation unreservedly supported the principle of the Mexican proposal”, the newly proposed draft Article was referred to Working Group C of Committee I. This Working Group, like the Committee very much pressed for time, hotly debated the proposal for a few days in the second week of May, 1977. As its Report shows, the debate was anything but harmonious; it places on record, on the one hand, that “[t]he laudable humanitarian motives which led the co-sponsors to submit the article were praised by all and sundry and there were felicitations all round”; on the other hand, the Working Group finally decided to submit two alternative proposals to Committee I: (a) to delete the proposed Article altogether, and (b) to adopt a text for the Article closely resembling the one originally proposed by Mexico and others. This complete lack of consensus in the Working Group stood in striking contrast to the normal procedure in that as in other Working Groups of the Conference, which had usually done their utmost to arrive at generally acceptable solutions. Evidently, the subject-matter at hand was so politically loaded that the proponents of the draft Article were not prepared to follow this normal procedure; indeed, as the Report of the Working Group shows, and as was stressed later by the Canadian delegation in a written explanation of vote, the co-sponsors of draft Article 86bis had not been willing to discuss the revision of the text they had proposed in the Working Group, but only in a meeting with like-minded delegations which was closed to non-sympathisers and the results of which were subsequently simply submitted to the Working Group. Having thus been rushed through the Working Group, the draft Article was equally rapidly, and without further substantive debate, brought up for decision in Committee I. At the outset of the relevant meeting, some Western opponents of the Article introduced a little surprise of their own, in the shape of a draft resolution that would take the place of Article 86bis and, rather than providing 183 184

185

CDDH/I/SR. 69, paras. 1-7. Ibid., para. 8; this statement, though not surprising in the light of the suggestion made earlier by Brigadier Anemaet speaking for the Dutch delegation, deviated markedly from the posture assumed by many of the Western colleagues, as had already become apparent in the procedural debate of the previous day. CDDH/I/350/Rev. 1/Add. 1/Rev. 1; the Report of the Working Group is annexed to that of Committee I on its work during the 4th session of the Conference, CDDH/405/Rev. 1. For the Canadian statement, see CDDH/I/SR. 77, 18 May 1977, Annex. For completeness’ sake, it should be recorded that the Ad Hoc Committee on 5 May 1977 had briefly become the scene of a half-hearted attempt to open a discussion on what action should be taken in that forum on the proposed draft Article 86bis; this attempt was soon defeated; CDDH/IV/ SR. 38.

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for permanent international machinery built into Protocol I, would recommend that “a Conference be convened in order to carry on the search for agreements on restrictions or prohibitions on the use of specific conventional weapons.” This move did not, however, prevent the Committee from continuing its deliberations on Article 86bis. In a rapid succession of votes, the proposal to delete the Article was rejected, a number of decisions were taken on the inclusion of words appearing in square brackets in the text submitted by the Working Group, and the Article itself was adopted by 50 votes to 27, with 13 abstentions. Only a fortnight later, on 31 May 1977, the Article came up for final decision in the plenary meeting of the Conference (where a two-thirds majority was required for its adoption). After some twenty-five delegations of different persuasions had stated their views at greater or lesser length, and after it thus had become apparent that no rapprochement between the opposing groups seemed practicable, the Article was put to the vote. Not surprisingly, the representative of Mexico requested that the vote be taken by roll-call. The result was 59 votes in favour, 32 against and 10 abstentions. Since this was less than a two-thirds majority, the Article was not adopted. It may be added that the negotiations which had been actively pursued between the vote in Committee I and that in Plenary had merely succeeded in reducing the number of abstentions; for the rest, the ratio between proponents and opponents had not appreciably changed. With this, the attempts to create hic et nunc permanent international machinery for the review of conventional weapon developments had come to an end. It remained for the Conference to deal with a resolution on the weapons question, a first project of which had, as related above, been introduced in Committee I. That Committee did not take the matter up itself: instead, it was brought up immediately in the Plenary. By the time that this happened, on 9 June 1977, sufficient time had elapsed to permit a modicum of reconciliation to emerge between the one-time opponents in the debate on draft Article 86bis. As a result, a single draft resolution could be presented to the Conference which replaced earlier draft texts, including the one mentioned a moment ago. The new draft text was introduced by Mr. Hans Blix (Sweden), as the man who at the first, 1974, session of the Conference had proposed to establish an Ad Hoc Committee on weapons, and who had remained active in that domain throughout the Conference. 186 CDDH/Inf. 240, 16 May 1977; CDDH/I/SR. 77, 18 May 1977, paras. 4 (Mr. Freeland, United Kingdom), 5-6 (Mr. Partsch, Federal Republic of Germany). 187 CDDH/I/SR. 77, para. 13; 30 votes were cast in favour of the deletion of the Article and 40 against, with 13 abstentions. As the vote was taken by roll-call, it shows that the Dutch delegation had meanwhile switched its position and joined those who opposed the Article. Interestingly, the delegation of Norway, another NATO country, voted against its deletion. 188 Ibid., paras. 14-30. 189 Ibid., para. 45. 190 CDDH/SR. 47, 31 May 1977.

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He, like some others, expressed disappointment at the rejection of draft Article 86bis; yet, he felt “there was ground for satisfaction in the fact that it had at least proved possible to work out an agreement on the manner in which efforts in that field might continue”, meaning the Conference of Governments to be convened in 1979 and which would be preceded by a preparatory conference. While it became apparent from various statements that not all delegations regarded themselves as a party to what Mr. Blix had described as an “agreement” on the future work, no delegation considered it necessary to oppose the consensus by which the resolution was thereupon adopted. The Resolution in question, subsequently numbered Resolution 22, was mentioned and substantially quoted above. Attention may be drawn in particular to operative sub-paragraph 3(b), in which the issue of a mechanism for the review of future agreements on prohibitions or restrictions on the use of specific conventional weapons is expressly raised as one of the aspects of the weapons question on which the projected Conference of Governments should seek agreement. This, therefore, is the compromise finally achieved: no provision in the Protocol, but no transfer of the matter to the CCD either; instead, a separate Conference, with a status left undefined in the Resolution but which has since been clarified somewhat in GA Resolution 32/152, referring as it does to a “United Nations conference”: this, at least, takes care of the question of auspices. For the time being, other questions regarding the status and power of the projected “United Nations conference” remain open, and so, evidently, do all questions on the substantive side of the matter, including those relating to the modalities and, indeed, the very acceptability of an international review mechanism. In this writer’s assessment, any worldwide agreement on these matters that is really worthwhile and, thus, neither merely cosmetic nor so idealistic as to defeat implementation, is still a long way off. 4.2

Other Provisions on Methods of Warfare

Among methods of warfare, the one must thoroughly despised in military circles is probably the act of perfidy. Customary international law has contained a prohibition on such acts since time immemorial, and this was codified in Article 23(b) of the Hague Regulations, 1899/1907, providing that it is forbidden “to kill or wound treacherously individuals belonging to the hostile nation or army.” Ruses of war, on the other hand, are considered permissible, as is “the employment of measures necessary for obtaining information about the enemy and the country” (Art. 24 Hague Regulations, in the version of 1907). Easy as it is to state these principles, it has always been very difficult to give any clear definition of what constitutes a treacherous act and what a ruse of war. 191 CDDH/SR. 57, 9 June 1977; the quoted phrase is in para. 50. 192 Ibid., para. 69.

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Indeed, in view of the ever-changing character of warfare and the continuous shift in methods, the question may be asked whether these concepts are not of such a nature as to escape definition in any fixed formula. Be this as it may, the Diplomatic Conference did not shrink from the difficulty of the task at hand and, after prolonged deliberations, finally produced, a text which at least resolves part of the problem. The Article in question, Article 37, deals with perfidy in its first paragraph and with ruses of war in the second. The structure of each paragraph is identical: first, a statement of principle; then a definition, and lastly a list of examples. The principles are that “[i]t is prohibited to kill, injure or capture an adversary by resort to perfidy” and that “[r]uses of war are not prohibited.” Perfidy is defined as follows: “Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.” Even lengthier is the definition of ruses of war: these are “acts which are intended to mislead an adversary or to induce him to act recklessly but which infringe no rule of international law applicable in armed conflict and which are not perfidious because they do not invite the confidence of an adversary with respect to protection under that law.” Both definitions hinge on two identical concepts: the confidence of an adversary, and protection under the rules of international law applicable in armed conflict. As the Report of Committee III notes, a reference to “confidence” alone (as in the ICRC draft submitted to the Conference) was regarded as too abstract; rather, the notion of confidence “must be tied to something more precise and should not be tied to internal or domestic law.” For this “something more precise”, the Committee, adopting a suggestion of the delegations of Canada, Ireland and the United Kingdom, “decided to refer to confidence in protection ‘under international law applicable in armed conflicts,’” by which was meant the laws governing the conduct of armed conflict which were applicable -to the conflict in question. While this decision doubtless resulted in a far more precise definition of perfidy than a mere reference to the confidence of the adversary could ever have achieved, time will have to show whether the concept of perfidy has not in this manner been reduced to a state of rigidity which is really irreconcilable with the aforementioned inherent flexibility of the art of warfare. One immediately discernable, peculiar effect of the new definition is that while “the feigning of

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See, for the discussions in the Experts’ Conference preceding the Diplomatic Conference, 3 NYIL (1972), at pp. 30-31. See, too, this writer’s The Law of Warfare (1973) pp. 101-105. 194 CDDH/236/Rev. 1, para. 15.

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civilian, non-combatant status” could be listed among the examples of perfidy, the equally treacherous feigning of friendly status by making use of the “flags or military emblems, insignia or uniforms of adverse Parties” could not be included in the list as it does not invite the confidence of an adversary that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict. This last-mentioned treacherous act now finds its place in a separate article (Art. 39(2)). Article 37 was adopted by consensus both in Committee III and by the plenary Conference, and so were the Articles on “recognized emblems” (Art. 38, adding “the distinctive emblem of the United Nations” to the list of Red Cross and other emblems the improper or unauthorized use of which is prohibited) and on “emblems of nationality” (Art. 39, mentioning the emblems of neutral States besides those of the adversary). The three concluding Articles of this Section, Article 40 on “Quarter”, Article 41 on “Safeguard of an enemy hors de combat” and Article 42 on “Occupants of aircraft” can be said to rest mainly on one and the same principle, viz., the prohibition on employment of methods of warfare “of a nature to cause superfluous injury or unnecessary suffering” (Art. 35(2), supra). Thus, Article 40 prohibits “to order that there shall be no survivors, to threaten an adversary therewith or to conduct hostilities on this basis.” Clearly, to initiate and carry out such a policy has the effect, in the terms of the preamble to the St. Petersburg Declaration, 1868, of “rendering death inevitable.” Similarly, the act prohibited in Article 41, to make “[a] person who is recognized to be hors de combat … the object of attack” surely is likely to “uselessly aggravate the sufferings of disabled men” (in the terms of the same Declaration). Article 42 is somewhat more complicated, as will be explained below. While the principles expounded in Articles 40 and 41 are entirely clear, their adoption, once again by consensus, marks an important improvement over the pre-existing written law. The text of the basic rule in Article 41(1) is moreover remarkable in that it prohibits attacks on a person “who, in the circumstances, should be recognized to be hors de combat” alongside those on a person who is so recognized. As the Report of Committee III explains, the test is what “a reason-

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It is listed under (c); the other examples are: “(a) the feigning of an incapacitation by wounds or sickness… (d) the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict.” Examples of ruses of war are: “the use of camouflage, decoys, mock operations and misinformation.” 196 CDDH/236/Rev. 1, para. 19. 197 CDDH/SR. 39, 25 May 1977, para. 64. 198 CDDH/215/Rev. 1, paras. 36, 37; CDDH/SR. 39, paras. 64, 66. 199 CDDH/236/Rev. 1, para. 26; CDDH/SR. 39, paras. 66, 69.

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able man” should have recognized. Paragraph 2 specifies when a person is hors de combat: “if (a) he is in the power of an adverse Party; (b) he clearly expresses an intention to surrender; or (c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself; provided that in any of these cases he abstains from any hostile act and does not attempt to escape.” The last-quoted phrase represents an important, though indubitably correct restriction on the preceding list of circumstances rendering a person hors de combat. It may indeed be useful to recall that behaviour in contravention of the norm contained in that phrase may amount to a perfidious act as prohibited under Article 37. In its third and last paragraph, Article 41 deals with the exceedingly delicate subject of the release of prisoners who cannot be evacuated. The situation is of course well-known, both in theory and practice, of the unit on patrol which captures a number of adversaries whom it cannot safely and without risk to its mission take along nor evacuate to the nearest post. In such a situation, it is sometimes suggested, the unit would be justified in killing the prisoners – this despite the express requirement in Article 13 of the Third or Prisoners of War Convention of 1949, to treat prisoners of war humanely at all times; prisoners of war who are, according to Article 12 of that Convention, “in the hands of the enemy Power, but not of the individuals or military units who have captured them.” Although the legal situation might therefore seem clear and any suggestion of justification of such killings unwarranted, it is no mean achievement for the Conference to have made the point explicit, in a provision which requires in so many words the release of “persons entitled to protection as prisoners of war” who “have fallen into the power of an adverse Party under unusual conditions of combat which prevent their evacuation” as provided in the relevant Part of the Third Convention, adding that “all feasible precautions shall be taken to ensure their safety.” A special case of being hors de combat is often seen in the situation of the “person parachuting from an aircraft in distress”, the subject-matter of Article 42. This Article provides, first, that no such person “shall be made the object of attack during his descent” and, secondly, that “[u]pon reaching the ground in territory controlled by an adverse Party”, such a person “shall be given an opportunity to surrender before being made the object of attack, unless it is apparent that he is engaging in a hostile act.” Paragraph 3, out of a desire to exclude any possible misunderstanding as to the scope of the preceding paragraphs, cautions that “[a]irborne troops are not protected by this Article.” One obvious conclusion from paragraph 2 is that the person who has reached the ground in territory controlled by his own side may doubtless be made the object of attack; he may, for instance, be fired upon from across the front line, 200 CDDH/236/Rev. 1, para. 23. 201 Ibid., para. 24.

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or he may be attacked from the air. While this is merely stating the obvious, the point to realize is that he may well represent an extremely valuable target. In time of war aircraft crew tend to be in even shorter supply and harder to replace than are aircraft, and it is good tactics for a belligerent Party to seek to eliminate as many enemy crew members as possible. This it can do by attacking them on the ground in enemy-controlled territory, or by simply taking them prisoner once they have reached the ground in territory under its control. A condition for the latter course of action is, of course, that the crew members in question refrain from hostile acts and are in fact willing to surrender. Quite rightly, paragraph 2 of Article 42 provides them with an opportunity to demonstrate this willingness and, thus, to place themselves hors de combat. Indeed, any other solution would be in flagrant contradiction to the principle prohibiting the infliction of unnecessary suffering. Rather less obvious is the situation envisaged in paragraph 1. Will his descent lead a “person parachuting from an aircraft in distress” to enemy-held territory, or to territory under the control of his own side? In the former case, the enemy can simply sit back and wait: once his descent completed, he will be a prisoner in their hands. In the latter hypothesis, however, he will escape the hold of the enemy and in all likelihood will be up in the air again taking part in active combat within the shortest possible time. Must this be allowed to happen? The answer to this question, as provided by paragraph 1, is an unqualified “yes”; the prohibition to attack a person while he is parachuting from an aircraft in distress is not subject to any exceptions. This result was not obtained without some fierce controversy. In the Working Group of Committee III, a group of Arab and other delegations, led by Egypt but of which the Netherlands delegation was also an active member, pressed very hard for a qualifying phrase to be added to the paragraph, worded as follows: “unless it is apparent that he will land in territory controlled by the party to which he belongs or by an ally of that party.” As no consensus could be reached in the Working Group, the text of paragraph 1 was submitted to Committee III with the quoted phrase in square brackets. There, the Egyptian delegate declared himself ready to withdraw his delegation’s proposal, only to be opposed in this by the delegate of Iraq, who “deemed it essential that the phrase between square brackets in article 39 [as it then was] should be retained.” And so it happened: when the proposal to delete the bracketed phrase was put to the vote, this proposal was rejected by 28 to 21 votes, with 21 abstentions. The article as a whole, including the controversial clause in paragraph 1, was thereupon adopted by 47 votes to 6, with 15 abstentions. After the vote, a number of delegations took the floor to explain their votes. Two things emerge with particular clarity from these statements: first, that both sides in the debate advanced valid arguments which, although not convincing to the other side, could not lightly be discarded as evidently ill-founded; secondly, 202 CDDH/III/SR. 47, 31 May 1976, paras. 11-28.

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that the impossibility of reaching consensus and the closeness of the vote on the words in square brackets provided some justification for “the view that the question should be reconsidered at the fourth session of the Conference.” Prior to turning to that occasion, it seems worthwhile to pay some attention to the arguments advanced on both sides. Basically, those who spoke in favour of the qualifying clause argued that a person whose descent will end in friendly territory is not effectively hors de combat during his descent but, on the contrary, is in the process of escaping. His case cannot, therefore, be assimilated to that of the enemy hors de combat of whom Article 41 speaks; indeed, that Article expressly exempts from protection the person who does not abstain from hostile acts or attempts to escape. There is, in short, no humanitarian ground to spare this man: he is a combatant as much as any other. Moreover, the partisans of this view pointed out that practice corroborates their analysis; while instances may have occurred during the First World War when pilots refrained from attacking disabled adversaries descending by parachute, an entirely different practice developed in later armed conflicts, so that the rule as advocated by them could not be said to run counter to any established rule of customary international law. In the opposing argument three considerations were paramount: one, that the crew member descending by parachute is effectively – though admittedly only temporarily – hors de combat for the duration of his descent: a manoeuvre which in no way can be compared to an escape. While this argument provides sufficient ground to include the person in question among those entitled to the protection of Article 41, chivalry was advanced as a second and independent ground requiring the military man to refrain from deliberately attacking an enemy dangling defenceless from a parachute, irrespective of his ultimate landing place. Thirdly, not merely practice but, indeed, customary international law confirms and corroborates this requirement – an assertion in support of which reliance was mainly placed on the non-authoritative and rather dated Hague Rules of Air Warfare, 1922/23, and on the more recent, but hardly more authoritative, British Manual of Military Law. The contest between the two opposing sides thus being largely undecided, both as concerned the outcome of the vote in Committee III and the quality and persuasive force of the arguments advanced, the Committee at the instigation of its Working Group decided during the fourth session of the Conference, first, 203 Report of the Committee, CDDH/236/Rev. 1, para. 29. 204 CDDH/III/SR. 47-48, 31 May/1 June 1976, passim. 205 Ibid. The Hague Rules are found in Schindler & Toman, op. cit. note 21, p. 139 et seq. Rule 20 reads as follows: “When an aircraft has been disabled, the occupants when endeavouring to escape by means of a parachute must not be attacked in the course of their descent.” 206 Report of the Working Group, CDDH/III/391 p. 3.

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to reconsider the Article at issue, and immediately thereafter and without further debate, to adopt a text which no longer contained the controversial formula. As the discussion which led to this radical shift took place in the Working Group, it seems worth quoting from the Report of that Group the argument that appears to have been accepted as decisive: It was felt that an airman descending by parachute is temporarily hors de combat as effectively as if he were unconscious and that it would be inappropriate for a Protocol designed to expand humanitarian protections to authorize making him a legitimate object of attack while in that helpless position.

In the Report of Committee III, this sentence is reproduced without change, and then followed by this cautionary remark: “It went without saying that any airman who, while descending, committed a hostile act, such as firing a weapon at those on the ground, forfeited his immunity from attack.” This sentence once again betrays the misgivings of those who were not so entirely convinced of the complete helplessness of the person in question. Far from being the end of it, the matter once again emerged with full dramatic force in the 39th plenary meeting of the Conference, when the Article on “Occupants of aircraft” came up for final decision. Two amendments had been tabled. One, by the delegation of the Philippines, purported to add at the end of paragraph 1: “unless he commits a hostile act during such descent” – the idea, therefore, expressed in the just-quoted sentence from the Report of Committee III. After a brief discussion, this amendment was voted upon and, failing to muster the required two-thirds majority, rejected. The other amendment, introduced by sixteen Arab delegations, represented a last attempt to reintroduce the restriction originally adopted by Committee III: “Unless it is apparent that he will land in territory controlled by the Party to which he belongs or by an ally of that Party.” A first, strongly worded reaction came from Mr. Jean Pictet, Vice-President of the ICRC and Head of its delegation at the Conference. I quote the following from what he said:

207 CDDH/III/SR. 59, 10 May 1977, para. 8; the vote on the question of reconsideration was 51 to 12, with 14 abstentions; the Article in its revised version was adopted by 52 to 4 votes, with 22 abstentions. 208 CDDH/III/391 p. 3. 209 CDDH/407/Rev. 1, para. 15. 210 CDDH/413. 211 The vote was 29 in favour, 27 against and 34 abstentions; CDDH/SR. 39, para. 85. 212 CDDH/414. 213 CDDH/SR. 39, paras. 88-90.

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So far, the Geneva Conventions had contained only provisions to protect the victims of conflicts; they had not given States any rights against those victims. It would be a matter of infinite regret to the ICRC if a provision which would allow war victims to be killed were included in the purely protective rules. The serviceman who, to save his life, parachuted from an aircraft in distress was a victim, shipwrecked as it were in the air, and that was the idea which should have precedence. Whether an airman landed in friendly or hostile territory, whether he rejoined his unit or was taken prisoner, should remain secondary considerations. A shipwrecked person was a victim of the conflict and should be protected in all circumstances.

With most speakers giving their unqualified support to the statement of so eminent an authority, the Arab delegates maintained their position, as well as their amendment. In support of their position, they advanced two arguments: one, an airman who might just have completed a bombing mission in the course of which he had inflicted great sorrow upon the civilian population deserved no protection; secondly, the comparison with a shipwrecked person was ill-founded as in the situation envisaged in the amendment the aviator was not hors de combat and was attempting to escape. While the first argument, adduced especially by the representatives of former colonies which obtained their independence after a war of national liberation fought against the technically superior forces of the colonial Power, really is inadmissible and diametrically opposed to the very essence of humanitarian law, the latter argument goes to the heart of the matter. If the airman parachuting down is a war victim no matter where he will land, then evidently he should be protected from attack. If, on the other hand, the situation of the airman who is about to land on friendly territory must be considered as analogous to that of the serviceman scrambling from a disabled tank on land, rather than to that of the sailor who is shipwrecked at sea, there seems to be no valid ground for such protection. Put another way, and with all due respect, the statement by Mr. Jean Pictet, starting out from the assimilation of the airman to a shipwrecked person, was really a case of begging the question. Be this as it may, the view presented so eloquently by the representative of the ICRC received overwhelming support, and in the vote which followed, the Arab amendment was defeated by a clear majority: 47 votes to 23, with 26 abstentions. The Article as a whole was thereupon adopted by 71 votes to 12, with 11 abstentions. This dramatic episode concludes our examination of the Section on “Methods and means of warfare” in Protocol I. In sum, the Section contains a number of essential principles and rules which, for the most part, reaffirm existing law. To the extent that they go beyond this, the new rules were mostly adopted by 214 Ibid., paras. 72, 96-97, 103, 106, 108. 215 Ibid., paras. 110, 113.

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consensus and are, moreover, based on realistic considerations. If paragraph 1 of Article 42 perhaps, to some extent, represents an exception to this rule, it is to be hoped that the spirit of chivalry and basic humanity on which it rests will carry it through, so that in the end it will be regarded as part and parcel of the law of armed conflict as much as the other rules on means and methods of warfare and, for that matter, on the protection of the civilian population. 5

General Provisions*

It is now known that the two Protocols will enter into force on 7 December 1978 between the first two states to have ratified them, viz., Ghana and Libya. With that, they will have passed from the stage of law in the making to that of law on the books. Many more ratifications will have to follow before they can have their full effect in those armed conflicts which, regrettable though it may be, will ensue in future. The restraints imposed on belligerents by Protocol I in particular are by no means novel in all respects. On the contrary, as explained above, many of the rules and principles it contains were already part and parcel of the customary international law of armed conflicts. Even so, the agreed formulation of these customary rules has a definite innovative effect, and besides, there are those other rules which are indeed completely new. Ratification by the greatest possible number of states is, therefore, of the utmost importance. It remains to be seen what reservations, if any, will be attached to the instruments of ratification. The Protocols contain no provisions on that subject; in the end, the majority view prevailed that to make reservations is a sovereign right of states which should not be restricted by any express provisions. Nonetheless, in quite a few instances one or other group of states declared a particular rule non-reservable. A case in point is the series of prohibitions on reprisals, contained in the Section of Protocol I on the protection of the civilian population. Except for the primary prohibition of reprisal attacks against the civilian population or civilians as such, these prohibitions encountered a good deal of opposition especially on the part of the Western delegations, and this outspoken opposition often evoked the equally outspoken comment that reservations to these prohibitions would be unacceptable and, indeed, impermissible under the law of treaties. While this is very much a debatable point, it cannot be dealt with fully here: the example merely serves to illustrate the point that the question of reservations was left open and may therefore give rise to problems in the future. Ratification, hopefully with the least possible delay and without any too troublesome reservations, must be followed by the implementation of the Protocols. This will be a task both for peacetime and times of armed conflict. Once again, *

The relative shortness and lack of detail of this chapter is due to a period of illness suffered by the author in 1978.

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this is no novelty: under the customary law regime too, states were supposed to instruct their armed forces in time of peace on the norms they would have to respect in war, and to ensure that the norms were effectively respected in the latter eventuality. In Protocol I, these obligations have been made express and elaborated into a set of detailed provisions regarding dissemination, the role of legal advisers in the armed forces, etc. (Articles 80-84). There are, moreover, rules about outside supervision which supplement and improve upon those already contained in the 1949 Geneva Conventions (Articles 5, 6). Unfortunately, Protocol II provides no more than the passively formulated rule that it “shall be disseminated as widely as possible.” Besides dissemination, application and supervision, Protocol I deals with the repression of breaches – thus, once again, solely for international armed conflicts. In connexion with the subject-matter dealt with in earlier sections of this paper, it is worth noting that certain infractions of the rules for the protection of the civilian population have been included among the acts qualifying as “grave breaches”; listed are, inter alia, “the following acts … when committed wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health: (a) making the civilian population or individual civilians the object of attack; (b) launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects…” (Art. 85(3)). Also listed and under the same conditions of intent and effect, are infractions of two key provisions of the Section on methods and means of warfare: viz., “(e) making a person the object of attack in the knowledge that he is hors de combat” and “(f ) the perfidious use, in violation of Article 37, of the distinctive emblem of the red cross, red crescent or red lion and sun or of other protected signs recognized by the Conventions or this Protocol.” It should be noted that perfidy itself (or, rather, in conformity with the text of Article 37: “to kill, injure or capture an adversary by resort to perfidy”) has not been made a grave breach in Article 85. There are, moreover, express provisions concerning failure to act (Art. 86) and the duties of commanders (Art. 87). While Article 86(1) simply provides that breaches (grave and otherwise) of the Conventions or the Protocol “which result from a failure to act when under a duty to do so” must be suppressed, paragraph 2 deals with the important question of the responsibility of superiors. According to the terms of this provision, superiors will bear “penal or disciplinary responsibility, as the case may be” for acts of a subordinate “if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit [such a breach] and if they did not take all feasible measures within their power to prevent or repress the breach.” Their duty to prevent or repress breaches of the Conventions and the Protocol is elaborated further in Article 87. It will be noted that the definition of the circumstances rendering superiors liable for the conduct of their subordinates resembles closely the criteria applied in the well-known Yamashita case.

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Having regard to these elaborate provisions on the responsibility of superiors for acts of a subordinate, it may be surprising to note that Protocol I remains silent on the famous question of superior orders. In point of fact, attempts were made from the very outset to introduce suitable language on this matter into Protocol I, but ultimately without success: no form of words was found which could muster sufficiently widespread support, and it was decided in the end to leave the matter for the time being to further developments, first of all in the sphere of domestic criminal law. On the matter of breaches of the Conventions or Protocol I, attempts were also made to create machinery, preferably somewhere in the United Nations Organization, to expose and condemn violators of these instruments – a role which the ICRC has consistently refused to assume. Greatly watered down, this idea now figures in Articles 89 and 90 of Protocol I. Article 89 states that in “situations of serious violations” of the aforementioned instruments the High Contracting Parties “undertake to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter.” As for Article 90, this provides in great detail for the establishment, competence and procedure of an “International Fact-Finding Commission” to be composed of “fifteen members of high moral standing and acknowledged impartiality.” Needless to say, recognition of the competence of the Commission remains optional (para. 2). Its competence consists of two parts: enquiring into alleged grave breaches or other serious violations of Conventions or Protocol, and facilitating, “through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol.” While this is a long way off the public “deploring” and “condemning” which the General Assembly of the United Nations is wont to do, it is of course precisely what matters most: more than any amount of condemnation after the fact, an “attitude of respect” for the applicable humanitarian law of armed conflicts will contribute to safeguarding the values it is designed to protect. In sum, the Protocols Additional to the Geneva Convention of 1949 will shortly turn from law in the making to law on the books. Many provisions have been included, especially in Protocol I, with a view to guaranteeing that it will not remain law on the books but will ultimately be capable of becoming law in action. Whether this will actually occur depends on the political will of States. It is for them to ensure that the law is properly disseminated and, in the event of actual armed conflict, respected. To create and maintain this political will is a heavy task for the ICRC, national Red Cross Societies and all other interested organizations and individuals; it will be a task worth pursuing, in view of the fundamental values at stake.

Chapter 10 The Netherlands and International Humanitarian Law Applicable in Armed Conflicts*

1

Introduction

The purpose of this paper is to describe some aspects of the attitude taken by the Netherlands in the recent past with respect to the development of international humanitarian law applicable in armed conflicts. The period chosen is that which begins after the Second World War. For one thing, that war brought an end to the posture of scrupulously maintained neutrality in international relations which the Netherlands had maintained for long years before that event, and for another, much of the law of armed conflict has been re-codified and developed further in the years which have passed since. What should be understood by “international humanitarian law applicable in armed conflicts”? It should be noted at the outset that the term did not even exist at the time of the Second World War and immediately after. The current notion at the time was the “law of war and neutrality”, and this comprised such widely divergent matters as the treaty relations between belligerent parties, the right of belligerents to adopt means of injuring the enemy (a right which Article 22 of the Hague Regulations on Land Warfare, of 1899/1907, stated to be not unlimited), the impact of the war on neutral States, and the treatment of prisoners of war. As compared to the old term, the new one is more restricted on the one hand, and wider on the other. The element of restriction lies in the adjective “humanitarian”. Although no consensus has yet emerged as to its precise meaning, this much is clear, that it has the effect of excluding such matters as the treaty rela-

* 1

Published earlier in H.F. van Panhuys (ed.), 3 International Law in The Netherlands (1980) pp. 289-335. The paper was finished in the summer of 1979. The Regulations respecting the Laws and Customs of War on Land, as their official title reads, are annexed to the Convention (II) with Respect to the Laws and Customs of War on Land signed at The Hague on 29 July 1899 and, in slightly modified version, to the Convention (IV) respecting the Laws and Customs of War on Land signed at The Hague on 18 Oct. 1907. These Conventions with annexed Regulations have been reprinted in D. Schindler and J. Toman (eds.), The Laws of Armed Conflicts (1973) (hereinafter Schindler & Toman) at p. 57 et seq.

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tions between belligerents, the greater part of neutrality law, and the impact of war on the contractual relations between private persons. The new term is wider in that it is applicable, not only when belligerent parties expressly recognize that they are at war in the technical legal sense, but also when active hostilities have in fact broken out between them. The characteristic feature of this factual situation is the existence of victims: wounded, dead, or captured enemy combatants, or enemy civilians in occupied territory. It is precisely the realization that these categories of persons are in need of protection irrespective of how the belligerent parties choose to qualify the situation, which led to the abandonment of the term “war” for that of “armed conflict” at least for that part of the “law of aimed conflicts” where the humanitarian values at stake are predominant. Initially, it could be thought with some justification that this part of the law coincided simply with the subject matter dealt with in the Geneva Conventions of 1949 – although it will be explained below that even at that juncture this was probably too simple a view of the situation. More recent developments have shown even more clearly that the distinction between the law relating to the protection of victims of the armed conflict (traditionally styled the “law of Geneva”) and the law governing the conduct of hostilities (or “law of The Hague”), although a useful tool in describing and analyzing the law of armed conflict, signifies neither a watertight nor a rigid division. 2 The Netherlands as Guardian of the Law of The Hague In the years immediately following the Second World War, two tendencies could be discerned which, although completely opposite in direction, could both be traced to the same common root. This common root was the War itself, with its inconceivably high level of destruction of human values and the general abhorrence it entailed. The two resulting tendencies were, on the one hand, to do away once and for all with the evil phenomenon of war – or, in the language of the preamble to the Charter of the United Nations, to “save succeeding generations from the scourge of war” – and, on the other, to improve and reinforce the law of war in case war might once again come to this imperfect world. The first tendency could be discerned most clearly in the very establishment of the United Nations Organization, with its categorical ban on the “threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations” and its concomitant system of collective security. The other tendency was apparent in the endeavours, initiated as early as February 1945 by the Geneva-based International 2

Not excluded are such matters as the possible role of neutral States as Protecting Powers, the medical assistance these States may provide to the belligerent parties, and their role in accommodating wounded or other prisoners of war.

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Committee of the Red Cross (or ICRC), to revise in the light of recent experience especially that part of the law of armed conflicts which is more particularly designed to protect the victims of war. Prior to the Second World War, this body of law was mainly concentrated in three Conventions: the Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, and the Convention relative to the Treatment of Prisoners of War, both signed at Geneva on 27 July 1929, and the Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention (i.e., the Convention of 1906 preceding the first-mentioned Convention of 1929), signed at The Hague on 18 October 1907. Many shortcomings of those Conventions had come to light in the years following their adoption, and the need to revise them was manifest. All three above-mentioned Conventions were concerned with the protection of one and the same category of persons: viz., combatants. No Geneva Convention had been concluded in this pre-war period for the protection of another main category of war victims, viz., civilians in enemy or enemy-held territory. Admittedly, rules especially relating to the latter situation had as long ago as 1899 been incorporated in the Hague Regulations on Land Warfare, of which they formed Section III: “Military Authority over the Territory of the Hostile State”. Even this title indicates that matters of military importance were at stake here; military occupation constituted an important element in the conduct of land warfare, and the fate of the occupied population represented but one aspect of the situation, among other ones that might be of equal or even greater importance. The law of military occupation, in other words, traditionally formed part of “the law of The Hague”. When, therefore, the Swiss Government in 1939 made a last-minute – and ultimately abortive – attempt to convene a diplomatic conference for the adoption of a Convention on the protection of civilians in enemy or enemy-held territory (the draft of which, elaborated by the ICRC, had been accepted by the XVth International Conference of the Red Cross, held at Tokyo in 1934) it took care to ascertain that this did not meet with any objections on the part of the Dutch Government, as the depositary of the Hague Conventions and the one-time host of the Hague Peace Conferences of 1899 and 1907 at which these Conventions had been formulated. The ICRC, in its post-war initiative to revise the law relating to the protection of war victims, obviously did not intend to confine its endeavours to a 3 4 5 6

Schindler & Toman, p. 247 et seq. Ibid. p. 235 et seq. Records of the Conference pp. 202-209; for a brief description of the history of the Tokyo project, see my Belligerent Reprisals (1971) pp. 83-89. Information found in the archives of the Ministry of Foreign Affairs. Here as elsewhere in the present paper, no specific references to sources contained in these archives will be given.

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revision of the existing Geneva Conventions; after all, it had attempted to shift the protection of civilians in enemy hands from “The Hague” to “Geneva” even before the War. Indeed, in its new initiative it intended to include other matters which, although from one point of view falling under the heading of protection of the civilian population, from another were even more directly connected with the conduct of hostilities than was already the case with military occupation: viz., aerial bombardment, the protection of hospitals, and the question of safety zones. As early as 1946, therefore, the ICRC notified the Dutch Government of these aspects of its plans, underlining its realization that this would mean encroachment on the traditional function of that Government as the guardian of the “law of The Hague”. In that same year, the Swiss ambassador in The Hague took up contact with Professor François, the Legal Adviser to the Minister for Foreign Affairs, to find out his feelings on the matter. In an internal note, François laid down his opinion that the Netherlands should take the same position as it had assumed in 1939. In his view, a conference on the revision of the law of The Hague in its entirety would be premature, and the only way in which an attempt to achieve a Convention on the specific subject of the protection of the civilian population could hope to be crowned with success was to place it under the auspices of the Red Cross. There was, moreover, in his view the practical consideration that the Netherlands were not at the time suitably equipped to host a major diplomatic conference. When, therefore, the Swiss Embassy in 1947 officially asked the Dutch Government about its point of view, the response, in conformity with the views of Professor François, was that the matter had best be brought to Geneva. This left, of course, the question of what ought to be done about the remainder – nay, the major part – of the law of The Hague: should the Dutch Government take the initiative to revive the Hague Peace Conferences, in order to achieve the urgently required revisions of that branch of the law? Or could another forum be expected to assume this charge? A possible alternative forum was the International Law Commission, established in November 1947 by the General Assembly of the United Nations under Article 13(l)(a) of the Charter. In the course of its first session (12 April - 9 June 1949) Professor François, member of the Commission, accordingly raised the question whether the law of war should be included among the topics to be taken on by the Commission. Interestingly, the decision on this question was taken on 20 April 1949: one day before the 1949 Diplomatic Conference on the revision of the Geneva Conventions commenced its work. The decision of the Commission, arrived at by an overwhelming majority, was negative. A variety of reasons had led the majority to their negative stance. The most outspoken opponent of the idea was Professor Koretsky (U.S.S.R.), according to whom the mere supposition that a new war was at all conceivable would have the effect of enhancing its possibility: to re-codify the law of war would be tantamount to warmongering: an activity to which no organ of

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the United Nations could lend itself. Several other members likewise felt that a revision of the law of war could not be a task of the United Nations, which had been created to secure peace in the first place. A few members held somewhat less negative views: thus, Professor Scelle (France) argued that, while the prohibition of war under the Charter precluded a codification of the law of war, rules could and should be established for the regulation of armed conflicts. Professor Brierly (U.K.), although accepting the need to re-codify the law of war, felt that the International Law Commission, as a body composed exclusively of lawyers, was not the right forum to assume that task. Two members reserved their views: Mr. Sandstrom (Sweden) wished to await the outcome of the Diplomatic Conference and Mr. Amado (Brazil) the examination of the Nuremberg principles. The Chinese member, Hsu, was the only one who expressed himself unreservedly in favour of a positive decision. In his report to the Dutch Minister for Foreign Affairs, Professor François pointed out that the first subject to be broached in a revision of the law of The Hague would be the use of weapons of war and, with that, the sensitive question of nuclear weapons. He also pointed to the recent Dutch military actions in Indonesia and the adverse effect these might be expected to have on any particular insistence on the part of the Dutch Government in the matter of taking up the revision of the law of The Hague. The latter consideration had restrained him, he added, from putting up any particularly strong defence of the case in the Commission and attempting to refute the arguments of his opponents. Yet, he felt that both the work of the Diplomatic Conference and the (negative) decision of the International Law Commission might result in a renewed interest in the revision of the law of warfare. As he would deplore it if the task which the Netherlands had hitherto performed in this field should pass into other hands, he suggested that the Dutch delegation at the Diplomatic Conference might sound opinions with respect to a possible Dutch initiative to resume the work of the Hague Peace Conferences as a complement to the Red Cross Conventions. The Dutch Government duly transmitted this suggestion to the delegation at the Geneva Diplomatic Conference, and the Head of the delegation discussed the matter informally with representatives of some other delegations, among wom those of Belgium, the United Kingdom and the United States of America. The reactions of these representatives were reticent: they had no instructions in the matter, and they felt that this was a question which directly regarded their governments. This much became clear, however, that any attempts to revise the Hague Conventions could be officially undertaken only with the consent of the Dutch Government. With that, the matter of a formal resumption of the work of the Hague Peace Conference came to rest. Soon after the Diplomatic Conference of 1949, it became apparent that the Dutch Government had lost its traditional role as guardian of the Hague law to an even greater extent than may be apparent from the above. The 1949 Civilians

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Convention, although dealing to a large extent with matters which previously had found a place in the Hague Regulations of 1899/1907, did not in any way purport to provide legal solutions for the entire, complicated set of problems formed by the protection of the civilian population from the hardships of war. The question which had remained most conspicuously open, and which indeed had been beyond the scope of the Conference, was that of the impact on the civilian population of military operations against enemy territory (and which basically could assume the shape, either of collateral damage to civilians or civilian objects in the event of attacks on military objectives situated in the territory, or of attacks directed against the civilian population itself ). The Diplomatic Conference had hardly closed its doors when the ICRC announced its intention to take up this question. Initially, its initiative was directed to the threat posed by nuclear and other weapons of mass destruction in particular. Later on, when it had become apparent that this was not a profitable course to take, the ICRC shifted its emphasis towards the general protection of the civilian population – even, more or less expressly, to the exclusion of questions of nuclear warfare. Evidently, this new initiative brought the ICRC even more directly on to the terrain of the law of The Hague than it had been with the earlier one. The field of activities which it sought to regulate now, although for understandable reasons indicated as that of the humanitarian protection of the civilian population from the risks of war, in effect was that of warfare proper, including both land and air warfare and even, to a small extent, sea warfare (bombardment by naval forces). Moreover, in the course of time it became apparent to the ICRC that other aspects of the law of warfare had to be included as well, notably the definition and legal status of combatants and the rules governing combatant behaviour towards the adversary. Indeed, once it had embarked upon the latter course it found, much to its regret, that even questions of prohibited use of specified conventional weapons could not be prevented from entering the debate. The ICRC, in other words, had step by step invaded and effectively occupied most of the domain which previously had been under the guardianship of the Dutch Government. Only too well aware of this, the ICRC in the early seventies asked the Dutch authorities whether they wished to retain the right to convene a diplomatic conference where the draft texts which were being prepared would be given their final shape. Once again, the Dutch answered this question in the negative; they 7 8

9

Convention (IV) relative to the Protection of Civilian Persons in Time of War, signed at Geneva on 12 Aug. 1949; Schindler & Toman, p. 417 et seq. The present author uses this term to indicate that part of the law of armed conflicts which specifically regards “wartime violence and other activities constituting warfare in a strict sense”; see his The Law of Warfare (1973) pp. 24-26. See, for a fuller account of this history, the articles by the present author in NYIL, vols. 2 (1971) pp. 68-90, 3 (1972) pp. 18-61, 5 (1974) pp. 3-34, 6 (1975) pp. 77-102, 7 (1976) pp. 197-206, 8 (1977) pp. 107-135, and 9 (1978) pp. 107-171.

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felt that, as a member of NATO, the Netherlands was not particularly well suited to host such a conference; nor did they wish to incur the expenditure involved in such an exercise. As a consequence, it was once again the Swiss Government which convened, and acted as host to, the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Geneva, 1974-1977) which ultimately resulted in the adoption, on 8 June 1977, of two Protocols Additional to the Geneva Conventions of 1949 – one “relating to the protection of victims of international armed conflicts” (Protocol I), and the other “relating to the protection of victims of non-international armed conflicts” (Protocol II). The above picture of the attitude of the Dutch Government with respect to its one-time role as guardian of the law of The Hague should be touched up in one, relatively minor respect. In the period under consideration, the Netherlands hosted the Intergovernmental Conference on the Protection of Cultural Property in the Event of Armed Conflict, convened by UNESCO and held at The Hague from 21 April to 14 May 1954. This Conference resulted in the adoption of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, with annexed Regulations for the Execution of the Convention, and of a separate Protocol on the specific question of the exportation of cultural property from occupied territory. Prior to this Convention, the protection of cultural property was (inadequately) regulated in Article 27 of the Hague Regulations of 1899/1907, and hence the matter properly belonged to the law of The Hague. Significantly, however, while the Conference was in effect held at The Hague, the Dutch Government was not assigned the task of acting as depositary to the new instruments: rather, this was entrusted to the Director-General of UNESCO. 3 The Geneva Conventions of 1949 and the Additional Protocols of 1977: Scope of Application While the older treaties on the law of war had either expressly or implicitly been applicable in “war” between contracting States, the scope of application of humanitarian law became a major issue in the post-war attempts at revision and extension of these instruments. 10

11 12 13

For text of the Additional Protocols, see Report of the Secretary-General, Respect for Human Rights in Armed Conflicts, UN Doc. A/32/144 (1977); 17 IRRC (1977) pp. 3-101; 16 ILM (1977) pp. 1391-1449. Schindler & Toman, p. 529 et seq. Thus, the Hague Conventions and annexed Regulations on Land Warfare, 1899/1907; the Geneva Gas Protocol of 1925 (Schindler & Toman, p. 109 et seq.). E.g., the first Geneva Convention for the Amelioration of the Wounded in Armies in the Field, signed at Geneva, 22 Aug. 1864, Schindler & Toman, p. 203; the Geneva Wounded and Sick Convention of 1929, ibid. p. 291.

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In the Diplomatic Conference of 1949, it proved fairly easy to agree on a form of words which placed beyond doubt that the Geneva Conventions of that year would be applicable “to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by them”, as well as to “all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance” (Art. 2 common to the four Conventions). Somewhat more discussion was needed to find a solution for the problem of how to make the Conventions applicable in relation to belligerent Parties who would not be a party to the Conventions. Several suggestions were put forward, among which a Belgian amendment to the effect that such applicability would only arise when these Parties would “accept to be bound by the principles” of the Conventions. The amendment was defeated, and a formula was accepted which requires the Parties concerned to “accept and apply the provisions” of the Conventions (Art. 2(3)). The Dutch delegation, it should be noted, took no part in this discussion. Far graver problems arose when an attempt was made to realize an idea which had become widely accepted even before the Second World War – and notably at the time of the Spanish Civil War – that the Geneva law ought to be applicable even in situations of civil war. It is not here the place to describe at any length the post-war drafting history of what ultimately became Article 3 common to the four Geneva Conventions of 1949. It started as a proposal on the part of the ICRC to provide that in the event of civil war the parties to the conflict would be invited to declare their intention to apply the principles of the Conventions on condition of reciprocity. This was followed by the view of the preliminary Conference of national Red Cross societies (26 July – 3 August 1946) that the Conventions ought to be applicable in such an event unless one of the parties expressly declared its refusal to do so. It eventually assumed the shape of a separate Article laying down no more than a few basic principles which the parties to an internal armed conflict are required to respect, leaving it to the parties concerned to agree on the application of (parts of ) the full Conventions. In the course of the proceedings which led up to this outcome, the Dutch authorities more than once had to determine their attitude with respect to this question. The first occasion was the Conference of Government Experts, convened by the ICRC from 14-26 April 1947. In Committee I, charged with examining the proposed revision of the Geneva Wounded and Sick Convention of 1929, the Dutch delegate expressed the view of his Government that the text proposed by the Conference of national Red Cross societies was too wide. 14 15

Final Record of the Diplomatic Conference of Geneva of 1949, vol. III p. 27 (hereinafter: Final Record). Ibid., vol. II, section B p. 55.

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What had to be applied in the event of internal armed conflict, he said, was not the Convention but its principles. This idea met with some sympathy in the Committee. What happened, however, was that Committee III (charged with the question of the protection of the civilian population) developed ideas regarding the scope of application of the draft Civilians Convention which differed widely from the proposal contained in the draft for a revised Wounded and Sick Convention, in making application in internal armed conflicts subject to reciprocity. In Committee III, the Dutch delegation remained utterly silent. When the Bureau of the Conference subsequently selected the Committee III formula as the one it preferred for all four Geneva Conventions, the Dutch experts once again remained silent when the matter was brought up in plenary for decision (which was achieved without further discussion). Following this Conference, an interdepartmental committee in the Netherlands examined the question once again. Some of its members objected strongly to the element of reciprocity which at the instigation of Committee III had found its way into the draft texts emanating from the Conference of Government Experts, whereas other members felt that it might provide a strong incentive for both parties to the conflict to respect the Conventions. The committee went much further when it came to examining the feasibility of applying the projected Prisoners of War and Civilians Conventions to situations of internal armed conflict. The nearly unanimous opinion was that this application would be extremely difficult to achieve. Therefore, the overwhelming majority of the committee voted in favour of deleting the proposed applicability of these two Conventions in internal armed conflicts. In the Diplomatic Conference, the Dutch delegation, perhaps somewhat surprisingly, did not express any specific opinion with respect to the various proposals in this matter, which followed one after the other in rapid succession. The explanation of this strikingly reticent attitude lay, once again, in the Indonesian affair: in the light of the recent events in that country, the delegation had considered it best to keep silent on this touchy subject. Towards the very end of the Conference, the Head of the Burmese delegation undertook a last-minute attempt to torpedo the Article on non-international armed conflicts just as it had finally emerged from the discussions. When at his request the vote was taken by secret ballot, the Dutch delegation cast its vote in favour of the Burmese proposal and thus against the text of what eventually became common Article 3: so 16 17 18 19 20

Procès-verbaux de la Conférence d’experts gouvernementaux pour l’étude des conventions protégeant les victimes de la guerre, Genève 14-26 avril 1947, vol. II pp. 5, 6. Ibid., vol. IV pp. 188-195. Ibid., vol. V pp. 10-16. Ibid., vol. I p. 32. Final Record, vol. II, section B, p. 339; the proposed Article was adopted by 34 votes to 12, with one abstention.

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strongly did recent experience influence the Dutch attitude in this important matter. The Dutch were no longer so inhibited when the scope of application of the rules of international humanitarian law applicable in armed conflicts once again became an issue, this time in the context of the attempts, undertaken in the 1970s, to “reaffirm and develop” important parts of that body of law. Accordingly, consecutive Dutch delegations, first to the 1971 and 1972 sessions of the preparatory Conference of Government Experts and subsequently to the 1974-1977 Diplomatic Conference were able to take a far more active part in the proceedings of these Conferences. A first question to arise was whether in the elaboration of new instruments the distinction between international and non-international armed conflicts should be retained at all, or, in other terms, whether there should be one or two additional Protocols as the outcome of the exercise. The single-Protocol solution, advocated by the Norwegian experts already at the first (1971) session of the Conference of Government Experts, was not such a novelty after all; it actually amounted to little more than a repetition of the arguments heard at the 1949 Diplomatic Conference that the Geneva Conventions should be fully applicable in all situations of armed conflict. Just as in 1949, though with far less debate, the Norwegian idea was discarded at an early stage of the proceedings as unworkable and unacceptable in a world of sovereign States, and the Dutch experts readily joined in this chorus. The distinction between the two classes of armed conflict thus being retained, the difficulty arose anew of finding a suitable dividing line between the two, and on top of that, of defining in somewhat more precise terms than had been used in common Article 3 (“an armed conflict…”) the threshold of application for the additional Protocol on non-international armed conflicts. As for the dividing line between international and non-international armed conflicts, the Dutch experts initially were of the opinion that certain specific factors could and should have the effect of turning an armed conflict waged within the territory of a single State into an international one: the level and intensity of the conflict (the Spanish civil war being the most prominent case to come to mind) and large-scale outside intervention, whether on the side of the incumbents or the insurgents (and here one might think of the war in Vietnam). Admittedly, common Article 3 urges the parties to a non-international armed conflict to “endeavour to bring into force, by means of special agreements, all 21

22

Report on the work of the Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Geneva, 24 May - 12 June 1971), published by the ICRC (1971, hereafter cited as Report on the work of the Conference) p. 20: para. 21 of the report on the first plenary sessions; pp. 35, 36: paras. 111 and 133 of the report of Commission II; p. 61: CE/Com.II/1-2-3: proposals submitted by the Norwegian experts. Ibid., p. 20: para 22; p. 35: para. 112; p. 36: para. 134.

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or part of the other provisions” of the Geneva Conventions; and it may perhaps seem a reasonable expectation that parties to an internal armed conflict will be most readily so prepared in the face of situations presenting the above characteristics. This did not appear enough, however; besides the mere appeal to the parties contained in common Article 3, a legal obligation in these situations to apply the rules governing international armed conflicts seemed called for. As the Dutch experts, along with their colleagues holding similar views, were soon to find out their ideas did not, however, find any widespread acceptance, and they had to be abandoned entirely. Much as they had favoured the above extension of the scope of application of the rules written for international armed conflicts, the Dutch participants in the discussions were strongly opposed to another idea which, having originated in the decolonization process, had won widespread support in the United Nations. The idea was expressly to include so-called “wars of national liberation” in the category of international armed conflicts. These wars, and notably those having their place in the decolonization process, have an unmistakable international aspect in that they are based on the principle of self-determination and therefore represent a matter of international concern. Equally unmistakably, however, they are (or were) waged on a territory which the colonial Power regards as part of his undivided State territory and which, at all events, is not under the sovereignty of another State. It was not, therefore, entirely self-evident that such wars ought to be considered as international armed conflicts even where humanitarian law was concerned. Along with numerous, mainly Western colleagues, the Dutch representatives kept up their endeavours to ward off this perceived threat to humanitarian law as long as they could: that is to say, till the end of the first (1974) session of the Diplomatic Conference. At that juncture, the proponents of an international status for wars of national liberation forced the matter to a vote in Committee I, and as they counted among their supporters virtually the entire Third World and the Communist States, the overwhelming majority by which they won the vote was a foregone conclusion. Although this was merely a decision on the Committee level and the decision yet stood to be ratified by the plenary Conference, the matter had for all practical purposes been settled once and for 23

24

Ibid., pp. 48-52: report of Commission II, Chapters V and VI; Report on the work of the Conference, second session (Geneva, 3 May - 3 June 1972}, published by the ICRC (1972, hereafter cited as Report on the work of the Conference, second session), vol. I pp. 97-100: report of Commission II, Chapter VIII. Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts. Geneva (1974-1977), published by the Swiss Federal Political Department (1978; hereinafter cited as OR), vol. VIII p. 102: summary record of the 13th meeting of Committee I, 22 March 1974; the vote, taken by roll-call, was 70 to 21, with 13 abstentions. The Netherlands was among the votes against.

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all. The Western and other opposing delegations gradually “learned to live” with the new situation – which, as they quickly perceived, was not likely to affect their countries more than marginally in the foreseeable future (the remaining cases of possible application being South Africa, Rhodesia and Israel). When Article 1, with its fourth and final paragraph containing the erstwhile hotly debated text, came up for final approval in Plenary during the fourth session, this approval was given without further ado: 87 votes were cast in favour, one against (Israel), while eleven, mostly Western, delegations abstained. The Netherlands had meanwhile so completely reconciled itself to the new situation that its delegation was among those who cast their vote in favour of the Article. It proved equally difficult to resolve the question of the scope of application to be given to Protocol II in non-international armed conflicts. Dutch experts were among those who took as their point of departure that the same openended formula found in Article 3 common to the four Geneva Conventions of 1949 should be used here too. To require nothing but the existence of “an armed conflict” would, so they felt, preserve the required flexibility of application of Protocol II and would leave open the possibility of applying it in the most diverse situations, much the same as was the case under Article 3. It soon became abundantly clear, however, that this idea stood no chance of being accepted by any significant majority – let alone by consensus – and that a great many delegations were set upon building into the Protocol a threshold which would effectively protect them from any undesirable claims that a situation of large-scale violence in their country, which they themselves chose to regard as entirely a domestic affair, did in fact amount to an internal armed conflict as defined in the Protocol. In this context, the argument of the sacredness and inviolability of national sovereignty was of course heard over and over again. It also became apparent that quite an important group of States were not at all keen on having a Protocol expressly dealing with situations of non-international armed conflict. The Dutch authorities, on the other hand, were among those who wished to have every effort made to arrive at a Protocol II which would be accepted on the widest possible scale. It therefore became a matter of delicate manoeuvring to save the Protocol from total defeat, while at the same time providing it with sufficient “body” on the one hand, and, on the other, with a threshold which would not make it all but inapplicable save in the rarest instances of “declared civil war”. At the Diplomatic Conference, members of the Dutch delegation contributed actively to these delicate negotiations, always keeping the goal in mind of a Protocol that could attract the widest possible adherence, while having the lowest threshold and the heaviest payload practicable. At the same time, they had themselves an open eye for certain requirements of sovereignty and “law and order” in a conflict-stricken country. Thus, although strongly in favour of provisions guar25

OR vol. VI p. 41: summary record of the 36th plenary meeting, 23 May 1977.

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anteeing humane treatment to all persons affected by the conflict, they were not prepared to accept the idea that persons who took an active part in the hostilities should be immune from punishment for that fact alone, much the same as prisoners of war in an international armed conflict cannot be punished for the mere fact of having committed acts of war prior to capture. Instead, they firmly stuck to the idea that the application of penal sanctions should be retained as one of the instruments at the disposal of the authorities charged with the maintenance of law and order. Towards the very end of the Diplomatic Conference, in a dramatic coup, many of the detailed provisions of Protocol II which had been drafted and accepted in the respective Committees were discarded in favour of a highly simplified version, prepared and presented in Plenary as an amendment by Pakistan to the draft Protocol in its entirety. As the idea of a drastically simplified Protocol II was widely supported, especially among the delegations of the conflict-prone Third World countries, the outcome of the debate was more or less a foregone conclusion. Indeed, the Dutch delegation felt so completely overwhelmed by the onslaught that it kept silent for most of the debate in Plenary, merely attaching a few “understandings” in written explanations of vote after certain particularly important draft articles had been deleted by consensus. Finally, when the whole of Protocol II as amended was adopted by consensus, the Dutch delegation not only did not object but did not even consider it necessary to give vent to its feelings, whether by a statement in Plenary or a written explanation of vote. While, thus, the outcome of the endeavours is a greatly reduced and, indeed, emaciated Protocol II, it is on the other hand provided with a rather formidable threshold. This is to say that the attempts to arrive at a fairly low threshold, or even no other “threshold” but the existence of “an armed conflict”, failed to achieve success. The text of Article 1, although not free from some ambiguity, is likely to be interpreted in such a way that it will not cover all those many cases of internal struggle which, although entailing widespread and large-scale violence and great numbers of victims, do not present the characteristics of a civil war in the strict sense. These cases will thus be kept outside the scope of application of Protocol II – and will at best be governed by Article 3 common to the Geneva Conventions of 1949, which Protocol II was intended to “reaffirm and develop”.

26 27

OR vol. VII pp. 101, 122, 162. OR vol. VII p. 205.

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4 The Geneva Conventions of 1949 and the Additional Protocols of 1977: Substantive Issues 4.1

Combatants and Resistance Fighters

The armies in the field, whose wounded and sick the very first Geneva Convention, of 1864, was designed to protect, were those bodies of men, conspicuous by their arms and uniforms, who at the time constituted the regular armies of States. They were easy to recognize and their combatant status was never a matter of doubt. Yet, even in those days other men besides the members of regular armies tended to get actively involved in hostilities. This happened, for instance, when inhabitants of an occupied territory took recourse to violent resistance against the occupying forces. In 1899, when the Hague Peace Conference set itself the task of codifying the law of land warfare, a first question to be settled was that of the qualifications for combatant status. As a matter of course, the Conference accepted that “the laws, rights, and duties of war apply … to armies.” Without too great difficulty, it accorded the same status to “militia and volunteer corps” not forming part of the army but fulfilling the four cumulative conditions of being under responsible command, having a fixed distinctive sign recognizable at a distance, carrying arms openly, and conducting their operations in accordance with the laws and customs of war (Art. 1, Hague Regulations). However, the problem of armed resistance on the part of inhabitants of occupied territory proved too difficult for the Conference to resolve. In the end, it disentangled itself from the problem by adding a preambular paragraph to the Convention on Land Warfare. This so-called “Martens clause” reminds the parties at war that with respect to those questions which the Conference had been unable to resolve, “populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established by civilized nations, from the laws of humanity and the requirements of the public conscience.” The experience of the Second World War, with its widespread armed resistance in many European countries, demonstrated all too clearly the deficiencies of this admonishment as a means to protect the resistance fighters in occupied territory from harsh revenge on the part of the occupying Power. However, the terms of reference of the 1949 Diplomatic Conference did not extend to a complete revision of the Hague Convention with annexed Regulations. On the other hand, they did include the revision of the Prisoners of War Convention of 1929. 28

The text quoted here is that of the English translation of 1899; it differs slightly from the usually quoted version of 1907, which reads as follows: “[T]he inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.” Schindler & Toman, p. 64.

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Therefore, the question at issue was brought up, not as one of granting combatant status but in the context of the extension of prisoner-of-war status to categories of persons who had not previously been entitled to that status under the terms of the Convention of 1929. Despite the general sympathy for the resistance fighters of the Second World War, there was little inclination to grant the resistance fighter prisoner-of-war status irrespective of how he organized and conducted his resistance activities: it seemed evident that like militias and volunteer corps, he too would have to meet certain conditions. Indeed, there existed a strong current of opinion at the Diplomatic Conference that resistance movements ought to be subjected to far more precise and detailed requirements than those governing the status of the militias and volunteer corps of the Hague Regulations. Farthest on this road went the British delegation, which at various stages of the Conference introduced draft texts listing a great many conditions relating to the territory where the movements would operate, information concerning the distinctive sign to be worn, capacity of their headquarters to be communicated with and to reply to communications, and to exercise effective control of lower formations and units, etc. In the course of the confused debate which ensued, the British delegation finally reduced its requirements to the condition “that the Government or the responsible Authorities which the organization acknowledges have notified the Occupying Power through a means by which they are able to make and reply to communications, of its participation in the conflict and of the distinctive emblem which its members wear” – it being understood, of course, that the four conditions of Article 1 Hague Regulations would remain intact. Among the opponents to this and similar proposals, the Dutch delegate Captain Mouton was probably the most effective in contributing to the final solution of the problem. In the course of the debate, he submitted an amendment which proposed to delete the separate sub-paragraph on resistance movements which the proposals before the Conference contained, and instead to insert language into the first sub-paragraph which would make it clear that resistance movements operating in occupied territory would be entitled to prisoner-of-war status under the same conditions as the militias and volunteer corps operating in non-occupied territory. This idea finally won general acceptance, and a text drawn up along these lines was unanimously adopted by the Special Committee of Committee II which had been charged with this particularly difficult problem. In the final version of the 1949 Prisoners of War Convention, it is found in Article 4(A)(2). 29 30 31 32

Final Record, vol. III pp. 60-62. Ibid., vol. III p. 62. Ibid., vol. IIA p. 468: 22nd meeting of the Special Committee of Committee II, 24 June 1949. Ibid., vol. IIA p. 479: 26th meeting of the Special Committee, 7 July 1949.

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Quite obviously, members of resistance movements operating in occupied territory will often find it impracticable to meet the conditions set out in the Hague Regulations and repeated in Article 4(A)(2) of the Convention of 1949; after all, they do not, like the traditional army march into battle with bands and banners. This may lead, first of all, to cases of doubt concerning the status of a captured person. Here, Article 5(2) of the Prisoners of War Convention comes into play. This provision takes the power to decide such cases of doubt away from the man who made the capture or his military superiors, and lays it squarely in the hands of a “competent tribunal”. It should be noted that the latter phrase was substituted for the words “responsible authority” contained in the draft Convention on the proposal of the Dutch delegation, which thus sought to avoid that decisions of such crucial importance would simply be taken by the military commander on the spot. It is also worth mentioning that according to the Dutch proponents of this amendment the decision could be a separate one but could equally be taken in the context of a trial, where a person accused of criminal conduct would claim prisoner-of-war status. In those cases where the “competent tribunal” arrives at a negative finding, or where the lack of prisoner-of-war status is so evident as to leave no room for doubt, a captured resistance fighter will not fall under the IIIrd but under the IVth or Civilians Convention. This is to say that the occupying authorities can punish him for his resistance activities. In doing so, they will have to comply with the provisions on penal sanctions set out in Article 64 et seq. of the Civilians Convention. One among these, Article 68, restricts in its second paragraph the capacity of an occupying Power to impose the death penalty to the severest offences against its vital interests. The paragraph requires moreover “that such offences were punishable by death under the law of the occupied territory in force before the occupation began.” This was too stringent a restriction in the eyes of the delegations of the United Kingdom and several other countries, including the Netherlands, if only because it seemed to provide a party to the conflict whose territory is about to be occupied with the means to deprive its opponent of a powerful sanction, by simply abolishing the death penalty just prior to occupation. The Dutch delegation accordingly co-sponsored an amendment to the draft Article, sponsored by the United Kingdom and with Australia, Burma and the United States as further co-sponsors. The amendment was, however, rejected in Plenary, by 17 votes to 15 with 11 abstentions. 33

34 35

Ibid., vol. III p. 63: text of amendment; vol. IIB pp. 269-272: discussion and adoption of the amendment, as amended by the Danish delegation, in Plenary, 13th meeting, 26 July 1949. In Committee II, the idea had previously failed to find sufficient support; vol. IIA p. 563: Report of Committee II to the Plenary Assembly of the Conference. Ibid., vol. III p. 141. Ibid., vol. IIB p. 431: 27th plenary meeting, 3 August 1949.

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On the 8th of December, 1949, on signing the Geneva Conventions, the Netherlands reserved its right to impose the death penalty in occupied territory, regardless of whether the offences referred to in Article 68(2) would be punishable by death under the law of the occupied territory in force before the time of the occupation. It maintained this reservation on ratification, on 3 August 1954. It should be added that the matter came up for reconsideration in the 1970s. In December 1971, the UN General Assembly adopted two resolutions, one (2853 (XXVI)) inter alia calling upon the States parties to the Conventions “to review, as a matter of priority, any reservations they may have made to these instruments” and the other (2857 (XXVI)) affirming that “in order fully to guarantee the right to life, provided in Article 3 of the Universal Declaration of Human Rights, the main objective to be pursued is that of progressively restricting the number of offences for which capital punishment may be imposed, with a view to the desirability of abolishing this punishment in all countries.” In that same month, moreover, the United Kingdom withdrew its reservation to Article 68(2). These events provoked some interdepartmental discussion on whether the Netherlands ought to follow suit, and this idea found general support. In the end, however, the matter was not pursued any further. A final aspect of the position of resistance fighters in occupied territory concerns their rights of communication under the 1949 Civilians Convention in case of detention by the occupying Power. Article 5(2) provides that such persons “shall, in cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention”, thus effectively depriving the detainee not only of his rights of communication but of his other rights under the Convention as well. For, although technically speaking he remains a “protected person”, he cannot avail himself of any of his rights so long as he is being kept incommunicado. This is obviously a most unfortunate provision, which can only be explained as a somewhat too successful attempt to counterbalance the provisions affording protection to the members of resistance movements. While, thus, the Diplomatic Conference of 1949 had brought important improvements to the position of resistance fighters, there remained quite some room for further improvement. In this respect, the Diplomatic Conference of 1974-1977 did not shirk its responsibilities and succeeded in adding further marked improvements. In doing so, it did not confine itself to resistance fighters; rather, it took into account the entire category of irregular combatants, no matter how named. A first innovation, and probably the most remarkable one, is found in Article 43 of Protocol I. The first paragraph of this Article does away completely with the historical discrimination between regular armies and other armed groups, when it defines the armed forces of a party to the conflict as “all organized armed 36

Schindler & Toman, pp. 481, 497.

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forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates…” The paragraph furthermore requires that such armed forces be “subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.” Any armed group fulfilling these conditions, whether it be a regular army or a resistance or other guerrilla unit, belongs to the armed forces, and according to paragraph 2 its members “are combatants, that is to say, they have the right to participate directly in hostilities.” As combatants, they are moreover entitled to prisoner-of-war status in case of capture by the enemy (Art. 44(1)), even though they might previously have violated “the rules of international law applicable in armed conflict” (para. 2). The last-mentioned rule of retention of prisoner-of-war status suffers exception, however, with respect to a situation of particular relevance to resistance fighters. The exception arises as follows. Article 44(3), first sentence requires all combatants “to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack.” The second sentence recognizes “that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself ”, and the records of the Conference show that the situations delegations had in mind and to which they wished to restrict the application of the exception were, either, guerrilla fighters engaged in a war of national liberation, or resistance fighters in occupied territory. Paragraph 3 goes on to provide that even in these exceptional situations the armed combatant shall “retain his status as a combatant” provided that he carries his arms openly: (a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.” In the event of his being captured while failing to meet these minimum requirements, however, he “shall forfeit his right to be a prisoner of war” (para. 4). While, thus, the regular combatant continues to hold a small advantage over the irregular resistance or liberation fighter, the position of the latter is far better under the Protocol than it ever was under the Hague Regulations or the Geneva Conventions. Yet, this is not to say that the Dutch delegation at the Conference welcomed the new rules with any particular enthusiasm. True, Dutch experts had suggested as early as 1972 that regular and irregular armies should be placed on an equal footing; but they had added that in their opinion all armed forces ought to fulfil a set of conditions which basically amounted to those of 1899, the sole difference being that instead of the two separate and cumulative conditions of wearing a fixed distinctive emblem and carrying arms openly, armed forces would simply be required to distinguish themselves from the civilian population “whether by carrying arms openly, by wearing a distinctive sign, or by any other

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means.” The virtual abolition of the traditional conditions, implicit in Articles 43 and 44 as finally accepted, was not therefore very much to their liking; and their misgivings were shared by numerous other delegations, mainly of Western countries. In the end, all these delegations with the sole exception of Israel, more or less grudgingly accepted the new rules, much the same as they had earlier accepted the decision that wars of national liberation would henceforth belong to the category of international armed conflicts. Between active participation in hostilities and captivity may lie a more or less long drawn-out transitional phase of being hors de combat. This will be the case, e.g., with the man who, unconscious and wounded, lies on the battlefield. Although he continues to be a combatant, his defenceless position obviously removes the need to attack him. Other cases may be less clear-cut, but the principle has been accepted that any person “who is recognized or who, in the circumstances, should be recognized to be hors de combat shall not be made the object of attack” (Art. 41(1) of Protocol I). The Article goes on to define in carefully chosen terms when exactly a person is considered to be hors de combat (para. 2), and it should be added that to find the right language for the various elements of this definition proved not always an easy task. Far greater difficulties arose, however, over the related problem of the person parachuting from an aircraft in distress. This person too, obviously finds himself in a transitional phase: having been forced to abandon his means of combat, he has not yet reached the ground – which, it should be noted straight away, can be in territory controlled by friendly or adverse forces, thus making the difference between liberty and captivity. Should this affect his position during descent? Article 42(1) provides the negative answer to this question: “No person parachuting from an aircraft in distress shall be made the object of attack during his descent.” This text is the outcome of a protracted struggle at the Diplomatic Conference, with numerous Western and other delegations defending the rule as it finally emerged, and a group of mainly Arab delegations wishing to exclude from the protection it offers those persons who are about to land in friendly territory. In this struggle, the Dutch delegation initially joined the Arab side, not because it shared their immediate interest in the matter (they were evidently thinking of 37 38

Report on the work of the Conference of Government Experts, second session, vol. II p. 37: CE/Com.II/25. OR vol. VI p. 121: roll-call vote in 40th plenary meeting, 26 May 1977; the vote was 73 to one (Israel), with 21 abstentions. The Dutch delegation was among those who voted in favour; for its explanation of vote, see id., p. 142: summary records of the 41st plenary meeting, 26 May 1977. Interestingly, Mr. Bloembergen, speaking for the Dutch delegation, emphasized in particular the potentially beneficial effect of the new rules “in situations such as might arise in wars of national liberation”, thus omitting any reference to the situation, more relevant to the Netherlands, of resistance fighters in occupied territory.

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the situation at the Suez Canal) but because it felt that, on realistic appraisal of the situation there was no good ground for a belligerent to be required to refrain from attacking an airman who, no matter how much in distress for the moment, could be expected to join his own forces in the next moment and to resume his activities with the shortest possible delay, as pilot or crew member of another aircraft. A separate vote in Committee III on the phrase containing the above qualification proved to be indecisive: 28 delegations (with the Dutch delegation among them) voted for its retention, 21 against, with 21 abstaining. Therefore, although the Committee immediately thereafter adopted the article as a whole by a large majority (47 votes to 6, with 15 abstentions), there clearly was room for a reconsideration of the issue. In effect, this took place during the fourth session, when Committee III without much ado decided to reverse its earlier decision. This time, the Dutch delegation joined the overwhelming majority (52 votes to 4, with 22 abstentions) which voted for a text not containing the qualifying phrase. Evidently, the lack of immediate interest, combined with the wish to keep in line with the Western partners had inspired this radical shift in the Dutch position. The delegation, it should be added, stuck to its new position when an Arab amendment, introduced in Plenary, sought to reintroduce the qualifying phrase; an attempt which was defeated by 47 votes to 23, with 26 abstentions. 4.2 Civilians: Human Rights Two concerns above all others appear to have determined the Dutch attitude at the Diplomatic Conference of 1974-1977 with respect to the protection of the civilian population: the need to co-ordinate its position with the NATO allies, and the desire to promote human rights. To start with the latter issue, the Dutch delegation was particularly active in the negotiations which ultimately resulted in the adoption of Article 75 of Protocol I. This Article, contained in the Section on “Treatment of persons in the power of a Party to the conflict” (Section III of Part IV, “Civilian population”) is entitled “Fundamental guarantees”, and it is in effect designed to provide a series of guarantees to all persons “affected by” an international armed conflict and who find themselves in the power of a party to the conflict without benefiting from more favourable treatment under the Geneva Conventions or the Protocol. Arguably, this definition includes this party’s own 39

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The Dutch delegation took this position in the Working Group of Committee III, 3rd session; the proceedings of this as of other working groups are not recorded; see, however, OR vol. XV p. 386: Report of Committee III, 3rd session, para. 29. OR vol. XV p. 90: summary record of the 47th meeting, 31 May 1976, para. 25. OR vol. XV p. 210: summary record of the 59th meeting, 10 May 1977, para. 8. OR vol. VI: summary record of the 39th plenary meeting, 25 May 1977, para. 113.

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nationals, provided always that they are “affected by” the conflict, for instance because they side with the enemy before being captured by their own forces. The fact that the text of the Article, although not explicitly saying so, at least can be interpreted in this sense, is surely due in part to the considerable efforts made by members of the Dutch delegation to obtain this result. The Article, which represents a sort of human rights convention in miniature, basically provides two sets of guarantees. One is the general principle of humane treatment without discrimination, elaborated into a series of specific rules which reaffirm and develop the rules already contained in Article 3 common to the Geneva Conventions of 1949 (paras. 1 and 2). The other main group of guarantees protects the person who is “arrested, detained or interned for actions related to the armed conflict” and consists of rules concerning such matters as information about the reasons of detention, the passing of sentences and the execution of penalties (paras. 3 and 4), the treatment of women (para. 5), the duration of the protection afforded by the Article (“until their final release, repatriation or re-establishment, even after the end of the armed conflict”: para. 6) and the prosecution and trial of persons accused of war crimes or crimes against humanity (treatment “in accordance with the applicable rules of international law” and in any event no less than as provided by Article 75, “whether or not the crimes of which they are accused constitute grave breaches of the Conventions or of this Protocol”: para. 7). Paragraphs 6 and 7, it should be added, were designed, inter alia, in the hope of thereby neutralizing a reservation to Article 85 of the 1949 Prisoners of War Convention, made by the Soviet Union and other communist States; but it remains to be seen whether they will be successful in that respect. In this context of fundamental guarantees, reference should be made once again to Article 5(2) of the 1949 Civilians Convention, which, as explained earlier, tends to deprive, say, a resistance fighter in occupied territory who does not qualify as a prisoner of war, of much if not all of the protection which that Convention provides. Here too, Protocol I brings a marked improvement. Article 45(3) lays down that any person who has taken part in hostilities shall as a minimum be entitled to the protection of Article 75. This already affords some additional protection to the man who has committed acts of resistance in occupied territory, either while not belonging to an “armed force” in the sense of Article 43 or while not distinguishing himself from the civilian population as required by Article 44(3), second sentence. The third paragraph of Article 45 goes on to provide, however, that “[i]n occupied territory, any such person, unless he is held as a spy, shall also be entitled, notwithstanding Article 5 of the Fourth Convention, to his rights of communication under that Convention.”

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See infra.

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Co-ordination of the Dutch attitude with those of the NATO partners was sometimes difficult to achieve with respect to certain aspects of the protection of the civilian population; and the greatest difficulties of all were presented by the issue of reprisals. The ICRC, in the draft Protocol it had submitted to the Diplomatic Conference of 1974-1977, had made a distinction: reprisal attacks against the civilian population ought to be prohibited but not those against civilian objects. This led to a series of vexing questions: was the distinction realistic? Ought the capacity to take reprisals against a civilian population to be given up at all, even for the eventuality of large-scale violation of the protective rules by the enemy? Should the capacity perhaps be given up only in exchange for another, less drastic and possibly more effective means of law enforcement? Opinions on these questions were divided among NATO countries and even within delegations. Thus, while the French and, although somewhat hesitatingly, the British were opposed to the very idea of a ban on reprisals against the civilian population (and civilian objects, of course), the delegation of the United States was divided on the subject, with the representatives of the Pentagon sharing the view of the French and British delegations but those of the State Department supporting the proposed ban – to the extent, that is, that it would protect the civilian population, not civilian objects. In the Dutch delegation, the situation was exactly the reverse, with the representatives of the Foreign Ministry feeling strongly inclined to follow the lead of the French, and the representatives of the Defence Ministry, supported by an express decision of the Minister, favouring the ban. The initial public stance of the Dutch delegation was a cautious one: support for the proposed ban on reprisals against the civilian population, extension of the ban even to reprisals against civilian objects (on the argument that the distinction would prove to be difficult, if not impossible to respect in practice) but all this under the express proviso that the Conference would find another, better means to enforce the rules for the protection of the civilian population. While no such other mechanism was actually proposed at that stage, it was clear that the delegation was thinking of some system of supervision which, it might be hoped, would even remove the need for recourse to reprisals. It soon became clear that nothing less than an unconditional and complete ban on reprisals against the civilian population and civilian objects alike would be acceptable to a large majority in the Conference. It was also apparent that an equally large majority was not prepared to accept machinery that could effectively act as a subsidiary means of law enforcement. In these circumstances, the Dutch delegation was forced to reconsider its position and to answer the ques44

OR vol. XIV p. 113: summary record of the 14th meeting of Committee III, 6 Feb. 1975, para. 26 (Mr. Kalshoven).

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tion of whether it would go along with the majority view or join the opposition. After some heated debate and after a personal intervention by the then State Secretary for Foreign Affairs, Dr. P.H. Kooijmans, the matter was finally and definitively decided in favour of an endorsement of the categorical ban sought by the majority of delegations. This ban ultimately found its place in diverse Articles of Protocol I: in Article 51(6) for reprisal attacks against the civilian population; in Article 52(1) for reprisals against civilian objects, and in Articles 53-56 for reprisals against a variety of particular objects, viz., cultural objects and places of worship, objects indispensable to the survival of the civilian population, the natural environment, and works and installations containing dangerous forces. The last-mentioned category of objects comprises, according to Article 56, “dams, dykes and nuclear electrical generating stations” (para. 1). For obvious reasons, the Dutch delegation felt a particularly keen interest in the dykes – an interest it shared for once with Vietnam. In view of this interest, the Dutch delegation went to great trouble to arrive at a text which would provide adequate protection for this particular class of objects. To be sure, a dyke does not normally represent a military objective – but a column of infantrymen or tanks on the dyke road does, and attacks against these or similar targets may easily cause severe damage to the dyke as well. Here, the principle of proportionality prevails: in no event may the amount of collateral civilian damage resulting from attacks against the targets on or near the dyke be “excessive in relation to the concrete and direct military advantage anticipated” as a result of the attacks (Art. 57(2)). Then, a dyke may itself become a military objective when, in the terms of Article 52(2), by its “nature, location, purpose or use” it makes “an effective contribution to military action” and its “total or partial destruction … in the circumstances ruling at the time, offers a definite military advantage.” Again, attacks on the dyke would then have to respect the proportionality rule mentioned a moment ago. In either case, however, the obligation not to cause excessive collateral damage does not amount to a sufficient protection of the civilian population from the very grave dangers it incurs if the forces of the water contained by the dyke are released. Hence the need for special protection of dykes (and dams and nuclear power plants), irrespective of whether they themselves represent, “in the circumstances ruling at the time”, a military objective. Accordingly, Article 56(1) lays down the dual principle that the named objects “shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population”, and that also “other military objectives located at or in the vicinity of these works or installations shall not be made the object of attack” if the attack may lead to the identical unacceptable result. While the above does not provide an absolute immunity from attack (the condition being that the attack “may cause the release” of the dangerous forces

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concerned and consequent severe civilian loss), further limitations of this conditional immunity are set out in paragraph 2 defining the circumstances in which the special protection ceases altogether (leaving only the rules relating to the general protection of the civilian population and civilian objects). Confining ourselves to the dyke in particular, its special protection against attack shall cease “if it is used for other than its normal function and in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support.” This form of words has been the outcome of protracted negotiations, in which Dutch delegates took an active part. Their concern was to avoid a situation whereby an adversary could lift the special protection of a dyke as soon as the dyke road (which is a common feature of many Dutch dykes) would be used by military traffic, no matter with what intensity and in what ratio to civilian use. The quoted phrase “may be less clear than is desirable”, as the Report of Committee III notes, and it continues: The term means the function of holding back, or being ready to hold back, water. Thus, if a dam or dyke is used for no purpose other than holding back water or being ready to hold back water, e.g., it is not made part of a fortified line or used as a road, the immunity from attack provided in paragraph 1 cannot be lost. Even if it is used for a function in addition to its normal function, the immunity is not lost unless it is used in regular, significant and direct support of military operations and if the only feasible way to terminate the support is by attack on the dam or dyke. In addition, it must always be recognized that an attack is not justified unless the military reasons for the destruction in a particular case are of such extraordinary and vital interest as to outweigh the severe losses which may be anticipated.

“Nevertheless” – the Report concludes with some regret – “it should be noted that some representatives remain concerned about the problems that may arise from the use of dykes for roadways.” The Dutch were evidently among these concerned representatives, and the Dutch representative in Committee III gave vent to the misgivings entertained by his delegation when he said that “there were still some ambiguities in paragraph 2 … which should be read in connexion with the generally accepted explanation attached to it.” He also expressed his delegation’s support for the statement in the Report “that in cases where a great many people would be killed and much damage done by the destruction of a dam or dyke, immunity would exist unless the military reasons for destruction in a particular case were of an extraordinary vital sort”, and he concluded by stating that his delegation considered the interpretation offered by the Rapporteur to be the

45

OR vol. XV p. 283: report of Committee III, 2nd session, para. 88.

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correct one and that its support of the consensus on the Article “had been based on that assumption.” Besides this concern about the possibly disastrous effect of an attack against our dykes, the Dutch delegation had another concern which, actually, was diametrically opposed to the first one. It was the fear that the Article, as originally drafted, would deprive the Netherlands of its capacity to inundate part of its territory in order to deprive the enemy of its use. In a combined Belgian-Dutch amendment it was therefore proposed to open the Article with the phrase “Without prejudice to the rights of the High Contracting Parties in their own territories”, which would thus precede the prohibition “to attack or destroy” the works and installations in question. The amendment was not retained, nor was there any longer a need for it, once the verb “destroy” had ceased to be mentioned separately besides “attack”. The final version of Article 56(1), in forbidding to make the dams, dykes and nuclear power plants the object of attack, leaves the Netherlands entirely free to resort to inundations if it so desires. 4.4 Weapons Returning once again to the Diplomatic Conference of 1949, the Soviet Union had at that stage consistently defended the view that the general protection of the civilian population against the effects of hostilities was as much within the competence of the Conference as was the revision of the Geneva Conventions of 1929 and of the rules on occupation contained in the Hague Regulations. Equally consistently, the Conference as a whole refused to assume this wider task, which was not comprised in its terms of reference. In this context, it is of particular interest to note the endeavours of the Soviet delegation at the Conference to raise the issue of atomic, bacteriological and chemical weapons. First in Committee III and then in Plenary, it tabled a draft resolution which would have the Conference decide that “the employment in any future war of bacteriological and chemical means of warfare and of atomic and other weapons designed for the mass extermination of the population is incompatible with the elementary principles of international law and the conscience of

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OR vol. XIV p. 306: explanation of vote, summary record of Committee III, 31st meeting, 14 March 1975 (Mr. Schutte). OR vol. III p. 223: CDDH/III/59, 19 March 1974; reintroduced with some modifications which did not however affect the opening phrase, 7 Feb. 1975; p. 225: CDDH/ III/59/Rev. 1.

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peoples.” Each time, the draft resolution was declared to be outside the scope of the Conference and, hence, non-receivable. The arguments for the refusal were set out, first of all, in a letter signed by fifteen delegations from various parts of the (non-communist) world and addressed to the President of the Conference. Somewhat conspicuously, neither the Dutch delegation nor those of Belgium and Luxemburg were among the signatories. This did not signify any support on their part for the Soviet initiative, though. The Dutch delegation had been notified of the intention to write the letter at a rather late stage and had then wished to co-ordinate its position with those of Belgium and Luxemburg, its partners in Benelux. While the Belgian delegates hesitated and those of Luxemburg were absent, the time to sign the letter had passed. Thereafter, however, the three delegations notified the Secretary-General of the Conference that they associated themselves with the point of view expressed in the letter of the fifteen delegations. In the deliberations of the 1970s, the question of nuclear and other weapons of mass destruction was occasionally broached by this or the other expert or delegate. The matter was never taken up seriously, however, for fear that some if not all of the Big Powers would immediately quit the scene. On the other hand, conventional weapons were not counted to be so wholly outside the sphere of competence of the series of conferences which culminated in the 1974-1977 Diplomatic Conference. Prohibitions or restrictions on the use of specified conventional weapons were not contained in the proposals and suggestions which the ICRC submitted to government experts in the early seventies. Already at the first, 1971 session of the Conference of Government Experts, however, the matter was brought up from various sides. Thus, the experts of Mexico, the Netherlands, Sweden, Switzerland and the United Arab Republic submitted a working paper which provided an outline of an instrument on the protection of the civilian population against the dangers of hostilities; and Chapter V of the outline, always in the context of this general concern for the civilian population, made some sug48

49

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Final Record, vol. IIA pp. 761-762: statement of the Soviet representative in the 40th meeting of Committee III, 6 July 1949; vol. IIB pp. 495-497: statement of the same representative in the 34th plenary meeting, 9 Aug. 1949; vol. III p. 181: draft resolution submitted by the Soviet delegation to the Plenary on 29 July 1949. Ibid., vol. IIA pp. 802-805: discussion and roll-call vote on the Soviet proposal, 50th meeting of Committee III, 19 July 1949; the proposal was declared non-receivable by 34 votes to 8, with 6 abstentions; vol. IIB pp. 497-509: discussion and vote in the 34th plenary meeting; the Soviet draft resolution was declared inadmissible by 35 votes to 9, with 5 abstentions. Ibid., vol. III pp. 180-181. The letter was signed by the delegations of Australia, Brazil, Canada, Chile, China, Colombia, Cuba, France, Italy, New Zealand, Pakistan, the United Kingdom, the United States, Uruguay and Venezuela. Ibid., vol. IIA p. 802.

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gestions with respect to “prohibited methods and means of warfare”. Under this heading, the following propositions relating to specific weapons were made: prohibition to use delayed action weapons “the dangerous and perfidious effects of which are likely to be indiscriminate and to cause suffering to the civilian population”; obligation to chart minefields and to hand the charts over at the close of active hostilities; prohibition to use napalm bombs and other incendiary weapons “in circumstances where they may affect the civilian population, as calculated to cause unnecessary suffering”; prohibition to use fragmentation bombs, “as calculated to cause unnecessary suffering”; and obligation to have a safety device on “weapons capable of causing serious damage to the civilian population”. The formulation given to these proposals obviously was no more than tentative, and the ideas underlying each of them had not yet been well sorted out. But their main tendency was clear: to protect the civilian population against the effects of the various weapons concerned. One year later, at the second session of the Conference of Government Experts, the experts of the countries mentioned above except the Netherlands had moved one step further. They no longer proposed bans on given weapons only in so far as they could adversely affect the civilian population, but general bans, thus covering the use against combatants as well. For the Dutch experts, this was going too fast, as any initiatives relating to the battlefield use of specified weapons evidently could be sponsored only after thorough examination and possibly co-ordination of views within NATO. They therefore submitted a separate paper, which made the point explicit that certain named weapons should be prohibited “for use in circumstances where they may affect the civilian population”; the weapons enumerated were delayed action weapons, napalm bombs and other incendiary weapons, and fragmentation bombs, it being left to the experts to provide a precise definition of each of these categories of weapon. In the ensuing years, the issue of possible restrictions on the use of specified conventional weapons became separated from the mainstream of the work of the Diplomatic Conference. The ICRC had not submitted proposals on the matter, whether as part of the draft Additional Protocols or as separate draft texts; indeed, it was greatly concerned lest any attempt to join too narrowly the matter of conventional weapons to the work on the Protocols might jeopardize the latter work. As an important group of States wished to take the matter up nonetheless, the Conference at its first session established an Ad Hoc Committee of the whole, with the task “to examine the question of prohibition or restriction of use of specific categories of conventional weapons which might be deemed to cause unnecessary suffering or have indiscriminate effects, and to consider all pro-

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Report on the work of the Conference, supra note 21; p. 97: CE/Com.III/44. Report on the work of the Conference, second session, vol. II p. 56: CE/Com.III/ C26 (proposal made by Prof. W. Riphagen).

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posals submitted to the Conference relating to such weapons.” The decision of the ICRC to convene a Conference of Government Experts which would examine the question of conventional weapons in all its aspects was also endorsed by the Conference. This experts’ conference met in two sessions (Lucerne 1974, and Lugano 1976) and its results were fed back into the Ad Hoc Committee. As a result, this Committee had a number of concrete, detailed proposals before it by the time of the fourth session of the Diplomatic Conference. As the adoption of any such proposals, according to the majority view in the Conference, lay outside the terms of reference, either of the Ad Hoc Committee or of the Conference itself, and as, moreover, opinions on the substance of the proposals still varied widely, the Conference ultimately referred the entire business “to the Governments of States represented at the Conference and to the Secretary-General of the United Nations.” It added the request that the matter be given “early and serious consideration”, and it recommended that “a Conference of Governments should be convened not later than 1979” with a view to reaching agreements on the substance of the matter and on “a mechanism for the review of any such agreements and for the consideration of proposals for further such agreements.” At the time of writing, this “Conference of Governments” is yet to be held: it has been convened for September 1979, as the “United Nations Conference on Prohibitions or Restrictions of the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects”. In the meantime, it may be of interest to note the developments in the Dutch attitude with respect to some of the specific questions at issue, and notably the attempts to prohibit or restrict the use of incendiary weapons and mines and booby-traps. As for incendiary weapons, an important group of States represented at the Diplomatic Conference favoured a near-complete ban on their use, thereby seeking to achieve protection of combatants and civilians alike against the effects of these weapons. Within NATO and likeminded countries, however, there was little inclination to accept such far-reaching proposals or, indeed, for some of these countries, any restrictions at all. In these circumstances, the Dutch experts at the second session of the Experts Conference (Lugano, 1976) took the auda-

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OR vol. V p. 90: summary record of the 9th plenary meeting, 4 March 1974, para. 50; the vote was 68 to none, with 10 abstentions; vol. XVI p. 453: Report of the Ad Hoc Committee, 1st session, para. 2. OR vol. XVI pp. 462-464. OR vol. I p. 215: Res. 22(IV): Follow-up regarding prohibition or restriction of use of certain conventional weapons. GA Res. 32/152, 19 Dec. 1977.

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cious initiative of introducing a working paper which was organized along the following lines. In a first part, rules were proposed for the protection of “any city, town, village or other area containing a concentration of civilians” from attacks by means of incendiary munitions in general and flame munitions in particular (the latter being defined as those incendiary munitions “in which the incendiary agent to be delivered on the target is based on a gelled hydrocarbon”, such as napalm). In a second part, it was proposed to ban the use of napalm in particular, and this against combatants as well, except in certain well-defined situations (such as use in close combat support, against bunkers and pillboxes, or against tanks and armoured vehicles). This two-pronged proposal provoked comments of the most diverse nature, showing that while in the form in which it had been presented it would not be acceptable to anyone, it opened an interesting avenue towards a possible compromise solution. This applied in particular to the part of the proposal relating to the protection of the civilian population: there appeared to be less enthusiasm for the suggested restrictions on battlefield use of incendiaries. Accordingly, the Dutch delegation at the third (1976) session of the Diplomatic Conference reintroduced the first part of its proposal as a working paper to the Ad Hoc Committee. Australia and Denmark subsequently became co-sponsors. Once again, it drew both favourable and critical comments from numerous delegations, thus encouraging the three Governments to continue on the same road. At the fourth (1977) session, they introduced a revised version of the working paper, the main revision being that the term “concentration of civilians” was put forward as the crucial element in the proposal. As the proposal pointed out, such concentrations “can either be of a permanent character, such as cities, towns and villages, or of a temporary character, such as camps and columns of refugees or evacuees.” This time, the proposal was discussed, along with the other proposals submitted by various (groups of ) delegations, both in the Ad Hoc Committee and in the Working Group it had established at the outset of the fourth session. As the report of the Working Group notes, there was general agreement that the three-country working paper did not go too far, with a number of delegations believing that it did not go far enough. It therefore seems 58

59 60 61 62 63

Report of the Conference of Government Experts on the Use of Certain Conventional Weapons, second session (Lugano, 28 Jan. - 26 Feb. 1976), published by the ICRC (Geneva, 1976, hereafter to be cited as: Report of the Conference, second session) p. 176: COLU/205. Ibid., pp. 106-108: report on the discussions in the General Working Group of the Conference, paras. 14-23. OR vol. XVI p. 562: CDDH/IV/206. OR vol. XVI pp. 489, 496-498: Report of the Ad Hoc Committee, 3rd session, paras. 7, 34-43. OR vol. XVI p. 564: CDDH/IV/206/rev. 1. OR vol. XVI pp. 513-515: Report of the Ad Hoc Committee, 4th session, paras. 19-26; pp. 533-535: Report of the Working Group, paras. 38-45.

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a fair assumption that the working paper at least offers a useful basis for further discussion. As regards mines and booby-traps, the role of the Netherlands, although active, was decidedly more modest. The initiative in this matter lay with the United Kingdom, with the Netherlands associating itself with the British proposals from the Lugano Conference onwards. Their main purpose, like that of the incendiary weapons proposal, was to provide adequate protection of the civilian population against the effects of these weapons. The matter being somewhat less controversial than that of incendiary weapons, it proved possible during the fourth session of the Diplomatic Conference to bring the two main proposals (one co-sponsored by Denmark, France, the Netherlands and the United Kingdom and the other by Austria, Mexico, Sweden, Switzerland and Yugoslavia) so close together that they could be merged into a single working paper. While this augured well for the question at issue, not all difficulties were completely resolved at the time and therefore, as in the matter of incendiary weapons, it remains to be seen what the final outcome of the ongoing discussions will be. 4.5

Other Matters of Substance

Two matters should be mentioned briefly under this heading: civil defence, and the protective emblem of the Geneva Conventions. The Netherlands has a civil defence organization which comprises both civilian and military elements. It is moreover assumed that in times of emergency the organization will co-operate closely with other, related organizations such as the Red Cross, the police, and the fire department. For these reasons, when the matter of civil defence was brought up at the first (1971) session of the Conference of Government Experts, the Dutch experts along with several others immediately took the position that, contrary to what the ICRC had suggested, not the organizations but .the function of civil defence ought to be the primary object of protection. This opened a debate which continued for quite some time, and the Dutch participants played an important part in achieving the ultimate result as it is found in Article 61 of Protocol I. This Article defines the function of “civil defence” in the first place, and the “civil defence organizations” to which protection is afforded in subsequent Articles (62-66) are defined in terms of that function (viz., any establishment or unit organized or authorized by the competent authorities to perform

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Report of the Conference, second session p. 167: COLU/203, working paper on land mines and booby-traps and proposals for the regulation of their use, submitted by the experts of France, the Netherlands and the United Kingdom. OR vol. XVI pp. 527-532: Report of the Working Group paras. 11-34; p. 544: CDDH/ IV/GT/4. Report on the work of the Conference p. 87: para. 490.

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any of the tasks mentioned under the heading of “civil defence”, and assigned and devoted exclusively to such tasks). The definition of the function of “civil defence” gave rise to quite some controversy. Two extreme possibilities presented themselves: a broad, abstract definition, or an exhaustive list of specific tasks. While the latter solution might be deemed to guarantee the greatest clarity and certainty of the law, the former solution is better suited to respond flexibly to the needs of an ever changing reality. Throughout the negotiations, the Dutch representatives, along with others, were set on reaching such a flexible solution. In the end, they saw a definition accepted the first part of which defined “civil defence” as “the performance of some or all of the undermentioned humanitarian tasks intended to protect the civilian population against the dangers, and to help it recover from the immediate effects, of hostilities or disasters and also to provide the conditions necessary for its survival”, and the second, enumerative part of which includes, at the very bottom of the list, “complementary activities necessary to carry out any of the tasks mentioned above …” Taken together, these provisions certainly appear to afford the flexibility which the Dutch delegates had so tenaciously sought to achieve. A last aspect of civil defence concerns the participation of members of the armed forces. Here too, two different tendencies could be discerned: to restrict the protection to strictly civilian civil defence organizations (or to their civilian parts), and to extend the protection to the military parts as well. The Netherlands, for obvious reasons, found itself once again on the side of those who sought to achieve the broadest possible protection. And once again, the Dutch and other delegations saw their endeavours ultimately crowned with success, when the Conference adopted Article 67 which states the principle that “members of the armed forces and military units assigned to civil defence organizations shall be respected and protected”, albeit under the proviso that they shall meet a series of conditions enumerated in the Article. The question of the protective sign of the Geneva Conventions has become a problem because not one but three such emblems have been recognized in the past: the Red Cross, the Red Crescent, and the Red Lion and Sun. As this (admit67

68

The greater part of the negotiations on this question took place in a working group and working sub-groups of Committee II, the reports of which provide no information about the differences of opinion on the various aspects of the question. But see OR vol. XII pp. 80-99: summary records of the 61st-63rd meetings of Committee II, 3rd session, where some indications are found concerning the difficulties that awaited the debate in the working groups. The same remark as in the preceding footnote applies here as well. See, for the introductory debate in Committee II, OR vol. XII pp. 99-116 and 146-147: summary records of the 63rd, 64th and 67th meetings. And see, in particular pp. 431-452: summary records of the 96th and 97th meetings, 4th session, where the Article was discussed and finally adopted by consensus. Mr. Gonsalves, member of the Dutch delegation, played an important part in that discussion as Chairman of one of the working sub-groups of the Committee.

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tedly modest) proliferation of emblems was founded on religious and nationalistic grounds, Israel, as soon as it had been created in 1948, felt that it was entitled to have its own protective emblem, viz., the Red Shield of David. It therefore utilized this emblem from the outset, and demanded recognition for it on the international plane, first of all at the Diplomatic Conference of 1949. Although obviously the grounds for its request were as valid as those of Iran (which was the one State to use the Red Lion and Sun), the Diplomatic Conference turned it down on the equally valid ground that any further proliferation of protective signs ought to be prevented. Of course, other considerations of a purely political nature entered into the debate as well. Suffice it to say that the proposal was rejected by 22 votes to 21, with 7 delegations abstaining; and that the Dutch delegation was among those who abstained. The matter was brought up time and again in subsequent international gatherings. Confining ourselves to the conferences of the 1970s on the reaffirmation and development of humanitarian law, the Israeli experts reiterated the proposal that the Red Shield of David should be recognized on the same footing as the other protective emblems at the first and second sessions of the Conference of Government Experts (1971, 1972). Each time, they received the reply that no extension of the list of recognized emblems could be accepted. Not easily discouraged, the Israeli delegation brought the matter up again at the Diplomatic Conference. During the second session, it submitted an amendment to the effect that a new Article should be added to Protocol I, laying down that “where the Red Shield of David on a white ground is already used as a distinctive emblem, that emblem is also recognized by the terms of the Conventions and the present Protocol.” The proposal, to put it mildly, lacked popularity at the Conference. Indeed, so completely was it rejected by the Arab countries and their large group of supporters, that it never came up for formal consideration by the competent Committee I. In the end, after a speech in which he eloquently expounded the Israeli position in the matter, Mr. Shabtai Rosenne withdrew the proposal in the course of the fourth session. Although at the time he reserved 69

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Final Record, vol. IIA pp. 89-92: discussion in Committee I, 17th meeting, 16 May 1949, where an Israeli amendment to recognize the Red Shield of David was rejected in a (non-recorded) roll-call vote by 21 votes to 10, with 8 abstentions; vol. IIB pp. 223-232: discussion in Plenary, 9th meeting, 21 July 1949, where an Israeli proposal to the same effect was defeated by 22 votes to 21, with 7 abstentions. Interestingly, it was also suggested at the time that an appropriate procedure be set up for devising a single emblem; this, in effect, was done only in 1977, when the Council of Delegates of the Red Cross set up a working group to study the question; see infra. Report on the work of the Conference p. 26: para. 67. Id., second session, vol. I p. 41: para. 1.62. OR vol. III p. 14. OR vol. IX pp. 462-465: summary record of the 74th meeting, 16 May 1977, paras. 1126.

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the right to reintroduce the amendment in Plenary, the Israeli delegation finally refrained from doing so and confined itself to entering a declaration into the records “that Israel uses the Red Shield of David as the distinctive emblem of the medical services and the religious personnel of its armed forces and of the National Aid Society, while respecting the inviolability of the distinctive emblems recognized by the 1949 Geneva Conventions.” This time, therefore, the Dutch delegation, as other ones not wholly unsympathetic to the Israeli position, had been spared the difficult choice of whether openly to support it, to abstain, or even to vote against it. It is worth noting that shortly afterwards, the Council of Delegates of the Red Cross in its meeting at Bucharest in October 1977 constituted a working group to study all questions relating to the emblem. The relevant resolution states that consensus will be required for any recommendations which the working group might wish to adopt, and it indicates as members of the working group the ICRC, the League of Red Cross (Red Crescent, Red Lion and Sun) Societies, the Henry Dunant Institute, and the national societies of Iran, Malaysia, Niger, Spain, Switzerland, Syria, Turkey, the United States and the Soviet Union. The resolution of the Council of Delegates was communicated to the XXIIIrd International Conference of the Red Cross held immediately thereafter. This Conference (where Governments are represented) was thus effectively spared the task of taking up the matter once again, and neither did Israel attempt to alter this situation by entering a formal proposal on its part. At the time of writing, the chances seem slight that the proceedings in the working group would lead to any speedy results. 5 The Geneva Conventions of 1949 and the Additional Protocols of 1977: General Provisions 5.1

Protecting Powers and Other Mechanisms of Supervision

The Diplomatic Conference of 1949 introduced into all four Geneva Conventions of that year Articles on the supervisory functions of Protecting Powers (Art. 8/8/8/9) or a substitute organization (Art. 10/10/10/11), as well as an Article on the independent right of the ICRC or any other impartial humanitarian organization to undertake humanitarian activities in the sphere of the Conventions (Art. 9/9/9/10). Already at the time it was feared by some delegations, with the French delegation in the lead, that these provisions were not enough and that situations might arise where no Protecting Powers would be available or accepted. To provide for such situations, the French delegation proposed the setting up, in time of peace, of a High International Committee which would be able to act as a sub73

Ibid., vol. VII p. 57: Annex to the summary record of the 48th plenary meeting, 1 June 1977.

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stitute organization. This proposal met with strong opposition from the Soviet Union and its allies. In the end, the Conference confined itself to adopting a Resolution introduced by the United Kingdom and recommending “that consideration be given as soon as possible to the advisability of setting up an international body, the functions of which shall be, in the absence of a Protecting Power, to fulfil the duties performed by Protecting Powers in regard to the application of the Conventions for the Protection of War Victims.” Shortly after the Conference, in 1950, the French Government came back to the point at issue, suggesting through diplomatic channels that a conference be convened to establish the proposed High International Committee. Its initiative remained without success, however. The Dutch Government, for one, considered it insufficiently elaborated and inopportune, this in view of the outright opposition demonstrated by the Soviet Union at the 1949 Diplomatic Conference. Attempts to reinforce the system of supervision were undertaken once again in the seventies, after it had become clear that the provisions in the Conventions of 1949 were insufficient to guarantee that Protecting Powers would actually be designated and accepted. Two lines of action presented themselves within the bounds of the aforementioned Articles of the Conventions: to remove the difficulties surrounding the designation and acceptance of Protecting Powers, and to enhance the possibilities for the ICRC to act as a substitute. Both lines of action were energetically pursued by a number of Western delegations, not least the Dutch delegation. In neither case were the results entirely satisfactory, though. As for the appointment of Protecting Powers, rules designed to secure such appointment to the maximum extent feasible are now found in Article 5, paragraphs 1-3, 5 and 6 of Protocol I; one particular aspect is that the ICRC has been charged to “offer its good offices to the Parties to the conflict with a view to the designation without delay of a Protecting Power to which the Parties to the conflict consent” whenever no such Protecting Power has been designated or accepted from the beginning of the armed conflict (para. 3). No real guarantee has been built into the Protocol, however, that Protecting Powers actually will be appointed: for that, the opposition in particular of the Soviet bloc was too strong. Already at the time of the Conference of Government Experts (1971, 1972) the Dutch experts also strongly supported the idea that the ICRC would be automatically charged to act as a substitute whenever the attempts to appoint Protecting Powers would evidently have failed. Here, they and their likeminded colleagues encountered an unexpected obstacle, however, in the shape of a flat refusal on the part of the ICRC to accept this charge. The willingness of the 74 75

Final Record, vol. III p. 30. Ibid., vol. I p. 361: Resolution 2; the Resolution was adopted by 32 votes to 8, with 4 abstentions; Id., vol. IIB p. 489: summary record of the 33rd plenary meeting, 8 August 1949.

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Committee went no further than to offer its services whenever it would be convinced that these would be acceptable to both Parties. This, indeed, is precisely what now has been laid down in paragraph 4 of Article 5: if there is no Protecting Power, “the Parties to the conflict shall accept without delay an offer which may be made by the International Committee of the Red Cross … after due consultations with the said Parties and taking into account the results of these consultations, to act as a substitute.” The Arab experts at the Conference of Government Experts had yet another concern: in their view, the ICRC failed to perform a task which they regarded as paramount, viz., to investigate and expose breaches of the Geneva Conventions and other relevant instruments. They therefore proposed that additional machinery be set up to perform this task, either within the framework of the United Nations or under its aegis. Their proposal met with strong opposition, inter alia, from Dutch experts who felt that such a United Nations organ could hardly be expected to meet the essential condition of impartiality. Their underlying fear was that the public exposure of violations in the United Nations framework, rather than contributing to the faithful application of the rules, risked embittering parties even further instead of restoring their mutual confidence. At the Diplomatic Conference, the Arab delegations did not at first submit a proposal along the lines indicated above but the Norwegian delegation did. In the Working Group of Committee I, where the proposals were discussed as amendments to draft Article 5 on Protecting Powers, the Arab and Norwegian delegations agreed on a combined proposal for a new paragraph to be added to draft Article 5, reading as follows: If the discharge of all or part of the functions of the Protecting Power, including the investigation and reporting of violations, has not been assumed according to the preceding paragraphs, the United Nations may designate a body to undertake these functions.

The most important contribution to the discussion in the Working Group was probably a statement made by the representative of the UN Secretary-General 76 77 78

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Report on the work of the Conference, second session, vol. I p. 180: para. 4.68. Report on the work of the Conference p. 109: paras. 543-544; Report on the work of the Conference, second session, vol. I pp. 180-181: paras. 4.70-4.72. The amendment they proposed would have shifted the burden of appointing Protecting Powers, in the last instance, to the “Conference of the High Contracting Parties” foreseen in draft Art. 7 of Protocol I (and which, in the final version, has been reduced to a “meeting” of those Parties, the convening of which requires the approval of the majority of the said Parties); OR vol. III p. 31: CDDH/I/75, 20 March 1974. OR vol. III p. 35: CDDH/I/83, 13 September 1974. OR vol. X p. 33: Report of Committee I, 2nd session, para. 58.

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to the effect that the Organization was less than desirous to see itself assigned the above role. In Committee I, the proposal was both widely praised for its spirit, and criticized for its contents and for the adverse effect it could have on the difficult compromise which underlay the text of Article 5 as proposed by the Working Group. The Dutch representative expressed his delegation’s doubts about the wisdom of involving the United Nations in this matter; as he said, it “had to be remembered that the United Nations was concerned with the maintenance of world peace and security and that its aims were primarily political. The ICRC, on the other hand, was essentially an apolitical and humanitarian body.” He also brought the point home that it “was not certain whether the victims of armed conflicts would derive any benefit if the paragraph were adopted.” Fortunately, this did not happen; the Committee rejected the proposal by 32 votes to 27, with 16 abstentions. Needless to say, the Dutch delegation was among those voting against. The combined Arab-Norwegian proposal was unfortunately phrased in that it linked the investigation and reporting of violations to the Protecting Powers (and indirectly, to the ICRC as a substitute), asserting without good grounds that this activity must be deemed to be included among the functions of that Power. Indeed, the Conventions of 1949 provide the strongest counter-argument in the Articles dealing with enquiry into alleged violations (respectively, Arts. 52I, 53-II, 132-III, 149-IV): these Articles, while opening the possibility for a Party to the conflict to request such an enquiry, leave the manner in which it shall be instituted entirely to “the interested Parties”; and any reference to the Protecting Powers in this context is conspicuously lacking. The above Articles are also evidence of the fact that the question of enquiry into alleged violations had been a matter of concern at the 1949 Diplomatic Conference. The Articles are, however, particularly weak and, worse, have never been applied in practice. There was, therefore, ample room for a reinforcement of the law with respect to this particular issue. In Protocol I as finally adopted, two Articles deal with the question at issue: Article 89, containing the undertaking of the contracting States, in “situations of serious violations of the Convention or of this Protocol”, “to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter”; and Article 90 making provision for the establishment of an International Fact-Finding Commission. 81

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In the Report to Committee I on the work of Working Group A, this is recorded in the following non-committal terms: “The Working Group heard a statement made by the representative of the Secretary-General of the United Nations on this matter.” OR vol. X p. 69. OR vol. VIII pp. 260-261: summary record of the 27th meeting of Committee I, 14 March 1975, paras. 44-48 (Mr. Fack). OR vol. VIII p. 264: para. 70.

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The establishment of fact-finding machinery as a means of reducing international tension has been a concern of the Netherlands for quite some time. Yet, the idea of introducing such machinery in Protocol I has not originated in a Dutch initiative: it was mentioned in the course of the first (1971) session of the Conference of Government Experts and Danish experts submitted a written proposal on the matter at the second (1972) session. At the Diplomatic Conference, two proposals were submitted to Committee I at the second session; one, by Denmark, New Zealand, Norway and Sweden, for the establishment of an “International Enquiry Commission” and the other, by Pakistan, for the establishment of a “Commission for the Enforcement of Humanitarian Law”. Both proposals covered much the same ground; the most significant difference was that in the Danish proposal the task of appointing the members of the Commission was entrusted to the ICRC, whereas in the proposal of Pakistan the members would be appointed by regional groups of contracting States. The latter proposal was moreover broader in that it went somewhat further than mere enquiry, adding that the Commission should also endeavour to bring a guilty Party back to “an attitude of respect for and obedience to the provisions of the Conventions and this Protocol.” Already at the stage of the introductory debate in Committee I, at the third session of the Conference, it became clear that the idea of mandatory jurisdiction for either of the two proposed commissions was unacceptable to quite a few delegations. For the rest, a marked preference for the Pakistani proposal over the Danish one could be discerned. The Dutch delegation was among those who expressed their support in principle, and subject to drafting changes, of the Danish proposal. At the fourth session, the contest between the two proposals was fought out in a Working Group and subsequently decided, in a paragraph-by-paragraph vote, in Committee I. The resulting text was amended further in Plenary. As compared to the original proposals, the outcome is less than entirely satisfactory. The Article establishes the principle that an International Fact-Finding Commission shall be established, but this principle will become operative only after twenty 84 85 86 87 88 89 90

Report on the work of the Conference p. 109: para. 546. Report on the work of the Conference, second session, vol. II p. 100: CE/Com.IV/10, Article (vii). OR vol. III p. 338: CDDH/I/241, 19 March 1975. OR vol. III p. 340: CDDH/I/267, 25 March 1975. OR vol. IX p. 47: summary record of the 45th meeting, 27 April 1976, para. 15; and pp. 196-197: 56th meeting, 12 May 1976, paras. 30-36 (Mr. Bloembergen). OR vol. IX pp. 418-426: summary record of the 72nd meeting, 13 May 1977, paras. 1264; vol. X pp. 190-191: Report of Committee I, 4th session, paras. 47-56. OR vol. VI pp. 309-328, 341: summary records of the 45th plenary meeting, 30 May 1977, paras. 15-99, and 46th plenary meeting, 31 May 1977, paras. 1-3. The Article was ultimately adopted by 49 votes to 21, with 15 abstentions.

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contracting States have declared their acceptance of the competence of the Commission to enquire into allegations of serious violations, under an optional clause on the same principle as that contained in Article 41 of the International Covenant of Civil and Political Rights. Once established (by an election held at a meeting of representatives of the contracting States) the Commission will have power, either (and this only in relation to States having made the aforementioned declaration) to enquire into the facts of alleged serious violations of the Conventions or the Protocol and to “facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol”; or, in “other situations” (meaning those where not both States involved have made the declaration) to “institute an enquiry at the request of a Party to the conflict only with the consent of the other Party or Parties concerned.” In the latter situation, the only progress as compared to the Articles on enquiry contained in the Conventions of 1949 is that machinery will already have been established. It should be mentioned, finally, that publication of the reports drawn up by the Commission is not normally foreseen and will take place only at the request of all the Parties to the conflict. In conclusion, Article 90 decidedly marks an advance; it provides machinery, and it provides contracting States with the option to accept its jurisdiction as compulsory. It should be hoped that a great many States will see their way to making use of this option, not least the Netherlands which for a long time has advocated the idea of fact-finding in general and which, moreover, at one stage of the Diplomatic Conference made its acceptance of prohibitions on reprisals against the civilian population virtually dependent on better means of enforcement becoming available. In this light, it is a matter of some regret that the Dutch delegation at the last session of the Conference did not see its way to expressing, if only for the record, a few words of appreciation for the results, no matter how modest, that had been obtained in this field. 5.2 Individual Responsibility Those who drafted the Geneva Conventions of 1949, in many respects derived their inspiration from events connected with the Second World War. One such event was the large-scale punishment of Axis war criminals, originating in a decision of the Allied Powers to “place among their principal war aims the punishment, through the channel of organized justice, of those guilty of or responsible for” the crimes committed in the countries under German occupation, “whether they have ordered them, perpetrated them, or participated in them.” It is not here the place to enter into the many problems connected with the execution of this decision; the only point to be made is that the Hague Regulations and the 91

Inter-Allied Declaration on Punishment for War Crimes, signed in London on 13 Jan. 1942.

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Geneva Conventions in force were far from providing adequate solutions for these problems. Understandably, therefore, considerable effort was made at the Diplomatic Conference of 1949 to mend this situation. The Dutch delegation, and notably its member Captain Mouton, played an important part in this effort and contributed greatly to its ultimate success. The Chapter on “Repression of Abuses and Infractions” in each of the 1949 Conventions opens with an Article (49/50/129/149) which embodies the undertaking of the contracting States “to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.” The great importance which the Dutch delegation attached to this provision is evident from a passage in the Report drawn up by Mouton as the Special Committee’s Rapporteur on the subject of penal sanctions in case of violations of the Conventions. Noting that prior to the Second World War many countries had not inserted the necessary provisions in their penal code, he wrote: The absence of such provisions resulted in many violations in the Second World War and brings in the danger of possible reprisals … [The category of grave breaches] has been carefully defined, so as to avoid including acts which allow for various degrees of gravity and could not therefore be considered to be grave breaches if only committed in their less serious forms. The inclusion of grave breaches which have to be penalized, guarantees a certain amount of uniformity in the national laws, which is very desirable when tribunals are also dealing with accused of other nationalities.

In short: the new Articles would guarantee uniformity of legislation, and these uniform national laws would in turn guarantee the occurrence of fewer violations. In the light of these, admittedly somewhat naive expectations, it is a matter of some surprise that the Netherlands eventually confined itself to laying down in the Act respecting Penal Law in Time of War of 10 July 1952 that “Anyone who is guilty of a breach of the laws and customs of war shall be liable to imprisonment for a period not exceeding ten years.” While this is in itself a most useful provision, it can by no means replace the uniform list of grave breaches which the author of the above Report had in mind. The quoted paragraph already hints at the possibility of tribunals having to deal with “accused of other nationalities”. The Report pointedly refrains from indicating these persons as “war criminals”. Indeed, the Soviet delegation 92 93

Special Committee of the Joint Committee, 4th report, Final Record, vol. IIB pp. 114-118. See, on this Act as on many other aspects of criminal law relevant to this section of the present paper, B.V.A. Röling in Chapter 15 of the present work [i.e., International Law in the Netherlands], vol. 2, at pp. 161-201, passim.

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throughout the Conference attempted to substitute the term “war crimes” for “grave breaches” and thereby to establish a link between the new provisions in the Geneva Conventions and the post-war war crimes trials. Without success, however; a majority of the delegations consistently refused to accept this modification. One particular aspect of the said war crimes trials was that members of the German armed forces who were prosecuted for war crimes were not recognized as prisoners of war. This loss of status could entail grave consequences for this category of “accused of other nationalities”. Therefore, the Conference introduced in the Prisoners of War Convention a provision according to which “prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention” (Art. 85). Opposition to the proposal to include this provision came, first and foremost, from the Soviet Union which, consistent with its above position on “war crimes”, argued that the proposal ran counter to an established rule of international law. Perhaps somewhat surprisingly, the same argument was also advanced by Mouton, when he said that the proposal “departed from a very old rule of customary international law, namely the rule that he who violated the laws and customs of war could not rely on the selfsame law for his protection.” He added, however, that the Dutch delegation “did not object to any change in that customary rule, but wanted the Committee to be aware of the results to which the adoption of the … draft might lead.” At a later stage of the Conference, he removed himself even further from the Soviet stand when he said that, although the above doctrine did indeed exist in international law, “we must not forget that international law is not a static thing but is progressive”; and the Dutch delegation, he added, had “no reason whatsoever to oppose such evolution.” The Dutch delegation might have no such reason but the Soviet delegation had. It maintained its opposition to the bitter end: even in the final stage of the Conference, it made an attempt to have the draft Article amended in Plenary, and when this failed, it voted against the Article. The Dutch delegation, it should be noted, had voted against the Soviet amendment, which was rejected by 23 votes to 8, with 7 abstentions. On signing the Convention, the Soviet Union made a reservation to Article 85, according to which it “does not consider itself bound by the obligation … to extend the application of the Convention to prisoners of war who have been convicted under the law of the Detaining Power, in accordance with the principles of the Nuremberg trial, for war crimes and crimes against humanity, it being understood that persons convicted of such crimes must be subject to the conditions 94 95 96

Final Record, vol. IIA p. 319: 18th meeting of Committee II, 8 June 1949. Ibid., vol. IIB p. 308: 16th plenary meeting, 27 July 1949. Ibid., vol. IIB pp. 303-312.

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obtaining in the country in question for those who undergo their punishment.” It maintained this reservation on ratification, on 10 May 1954. Needless to say, the other communist States followed suit, making reservations in identical or similar terms. Several, mainly Western States objected to this reservation, without however going to the length of refusing to accept treaty relations with the reserving States. The Netherlands, for its part, did not make such an express objection. As noted above, the United Nations General Assembly adopted on 20 December 1971 Resolution 2853 (XXVI) which, inter alia, calls upon States parties to the Geneva Conventions and other relevant international instruments “to review, as a matter of priority, any reservations they may have made to these instruments.” This appeal was designed, at least in part, to get the Soviet Union to withdraw its reservation to Article 85. Nothing of the sort happened, however; and also later attempts, in the context of the Diplomatic Conference, to bring about such a withdrawal were of no avail: on the contrary, the Soviet delegates at the Conference left no opportunity unused to reiterate their argument that those prosecuted for war crimes should not be regarded as prisoners of war. Although the Soviet delegation did not succeed in winning the Conference over to its point of view, it scored a minor point when it saw a provision adopted as paragraph 5 of Article 85 of Protocol I on “Repression of breaches of this Protocol”, according to which “[w]ithout prejudice to the application of the Conventions and of this Protocol, grave breaches of these instruments shall be regarded as war crimes.” In the light of the Dutch legislation on individual criminal liability for war crimes, this may seem a perfectly innocuous provision. Its drafting history shows, however, that it goes back to the Soviet insistence to have the term “war crime” appear somewhere in the Protocol. Therefore, although Committee I adopted the paragraph by consensus, several delegations expressed their misgivings about its possible implications. Thus, the Dutch delegate said that he failed to see “why some members thought it necessary to introduce the legal principles applied at Nuremberg into the legal rules of the Geneva Conventions, but he hoped that the fact of regarding grave breaches of those Conventions as war crimes would never be made an excuse for anyone to evade the application of the four Geneva Conventions of 1949.” The above question was only one among the many vexing problems encountered by the Diplomatic Conference in the course of its dealings with the subject of repression of breaches of the Protocol. The Geneva Conventions, it should be recalled, have a system based on the concept of “grave breach”, and the grave breaches under these Conventions are carefully defined acts committed against persons protected under the Conventions. Extension of this system to Protocol I might not seem all that difficult in respect of acts committed against the 97 98 99

Schindler & Toman, op. cit. note 1, p. 505. OR vol. IX p. 271: summary record of the 61st meeting, 3 June 1976, para. 11. OR vol. IX p. 280: para. 69 (Mr. Bloembergen).

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wounded, sick and shipwrecked protected by Part II of the Protocol. But questions arose already with respect to the extension of the system to persons protected by Articles 44 and 45: those entitled to prisoner-of-war status by virtue of Article 44, including the members of irregular armed forces operating in occupied territory or in the context of a liberation war, and even those who would have taken part in hostilities without being entitled to that status (but merely to the general protection of Art. 75). And even graver problems arose in relation to the possible application of the system of grave breaches to those Parts of the Protocol dealing with methods and means of combat and the protection of the civilian population; here more than in relation to any other aspect of the question, the reluctance was great among delegations to accept any drastic solutions. In the end, a compromise was reached along the following lines. The provisions of the Conventions of 1949 “relating to the repression of breaches and grave breaches” were declared to apply to the Protocol as well (Art. 85(1)). The category of protected persons under the Conventions was extended to cover “persons in the power of an adverse Party” (thus excluding nationals of a Party to the conflict) who are protected by Articles 44 and 45, as well as refugees and stateless persons protected by Article 73 (Art. 85(2)). Additional grave breaches were defined in paragraphs 3 and 4. Paragraph 3, dealing with the questions of “methods and means” and “protection of the civilian population”, contains a strictly limited list of acts which “shall be regarded as grave breaches of this Protocol, when committed wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health”; the list comprises, inter alia, the following: “(a) making the civilian population or individual civilians the object of attack”; “(b) launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects” as defined in Article 57; “(e) making a person the object of attack in the knowledge that he is hors de combat”, and “(f ) the perfidious use … of the distinctive emblem of the red cross, red crescent or red lion and sun or of other protective signs recognized by the Conventions or this Protocol.” Paragraph 4, finally, provides a further list of acts which “shall be regarded as grave breaches of this Protocol, when committed wilfully and in violation of the Conventions or the Protocol”; this list contains such diverse items as “unjustifiable delay in the repatriation of prisoners of war or civilians” (a Pakistani amendment), “practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination” (an Afro-Arab initiative) and, at the other extreme, “depriving a person protected by the Conventions or referred to in paragraph 2 of this Article of the rights of fair and regular trial” (a Western idea). Evidently, much of this will cause great difficulties, both for national legislators and for the tribunals which eventually will have to apply the above provisions. Yet, the compromise contained in Article 85 appears to be a workable solution in principle, and at all events is preferable to no solution at all, or in other

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terms, to the “choice” which the representative of the ICRC mentioned as a last resort at the outset of the debate in Committee I: “to rest content with a very short article providing simply that the Contracting Parties should take all the necessary legislative and other measures to prevent breaches of the Protocol.” It remains a regrettable fact that the Article contains a number of clauses which can only be regarded as “hobby horses” of one or other group of countries. One particular hobby horse fortunately does not figure in the list of grave breaches; it was the idea, advocated by the Philippine delegation, to include the use of prohibited weapons. The Dutch delegation was among those who spoke out against this idea, pointing out that it “would not be desirable to include among the grave breaches the use of weapons that had not yet been sufficiently defined, since grave breaches should be formulated as unambiguously as possible.” With this, it reverted to a theme it had developed at the outset of the debate, when it had announced its intention to “stress the need for crystal-clear provisions and the avoidance of all ambiguity.” This it had duly done in the debate and in the negotiations which followed; in the end, however, like all other delegations it had to accept a compromise which was not satisfactory in all respects, and which definitely is not without some ambiguity in places. However, the serious ambiguity which would have resulted from adoption of the Philippine proposal was effectively averted. Two other draft Articles remain to be briefly discussed: one on “failure to act” and another on “superior orders”. The idea that the Protocol should contain a provision on the responsibility of superiors for failure to act with respect to violations committed by their subordinates was introduced by Dutch experts, on the instigation of Professor Röling, at the Conference of Government Experts. It was taken over by the ICRC in the draft Protocol submitted to the Diplomatic

100 OR vol. IX p. 16: summary record of the 43rd meeting, 23 April 1976, para. 6 (Mr. Pilloud). 101 OR vol. IX pp. 258-264, 271-277: summary records of the 60th and 61st meetings, 3 June 1976. 102 OR vol. IX p. 259: 60th meeting, para. 31 (Mr. Bloembergen). 103 OR vol. IX p. 47: summary record of the 45th meeting, 27 April 1976, para. 16 (Mr. Bloembergen). 104 The Philippine delegation reintroduced its idea as an amendment in Plenary at the 4th session of the Conference; in a roll-call vote with the Dutch delegation among those voting against, it failed to obtain a two-thirds majority and was therefore rejected (the vote was 41 to 25, with 25 abstentions). OR vol. VI pp. 279-289: summary record of the 44th plenary meeting, 30 May 1977, paras. 1-55. 105 Report on the work of the Conference, second session, vol. I p. 188: para. 4.122; vol. II p. 107: CE/Com.IV/45.

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Conference, and was finally adopted as amended, first by Committee I and subsequently by the plenary Conference. There was less success in the endeavour, strongly supported by consecutive Dutch delegations, to insert a provision on superior orders. As originally drafted by the ICRC, it contained two elements: first, impunity for a person who refuses “to obey an order of his government or of a superior which, if carried out, would constitute a grave breach of the provisions of the Conventions or of the present Protocol”; secondly, the rule that the plea of “superior orders” does not entail impunity if it be established that, in the circumstances at the time, the accused “should have reasonably known that he was committing a grave breach of the Conventions or of the present Protocol and that he had the possibility of refusing to obey the order.” This was evidently a compromise formula: the ICRC had added the final clause in order to humour those experts who had emphasized “the extremely difficult situation of a soldier subject to military laws and regulations which compelled him to obey orders.” This already pointed to one grave difficulty: numerous delegations were not prepared to accept a rule of international treaty law restricting the duty to obey orders. The other main difficulty encountered by the proponents of the draft Article was hardly less grave: national systems of criminal law differ so widely that it would be hard to find for the rule on superior orders a form of words which would satisfy all countries. At the fourth session of the Conference, after a Working Group had redrafted the proposed Article, Committee I voted first, at the instigation of Syria, on the retention or deletion of the Article. The decision of the roll-call vote was in favour of retention, but the number of abstentions was ominously high: 34 votes to 9, with 35 abstentions. The next day, the Committee adopted the Article by 38 votes to 22, with 15 abstentions. But one month later, the Article narrowly failed to obtain a two-thirds majority in Plenary (36 votes to 25, with 25 106 OR vol. IX p. 278: summary record of the 61st meeting, 3 June 1976, para. 59: adopted by consensus. 107 OR vol. VI p. 307: summary record of the 45th plenary meeting, para. 1: adopted by consensus. 108 OR vol. IX p. 127: summary record of the 51st meeting of Committee I, 5 May 1976, para. 22 (Mrs. Bujard). 109 Similar difficulties had been met at the Diplomatic Conference of 1949, and they had rapidly led to the conclusion that the matter had better be left aside; as Mouton noted in his Report: “general agreement [could not] be reached at this stage regarding the notions of complicity, attempted violation, duress or legitimate defence or the plea ‘by order of a superior’. These should be left to the judges who would apply the national laws.” Final Record, vol. IIB p. 115 (emphasis added). 110 OR vol. IX p. 387: summary record of the 69th meeting, 27 April 1977, para. 38; the Dutch delegation voted in favour of retention. 111 OR vol. IX p. 392: summary record of the 70th meeting, 28 April 1977, para. 18.

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abstentions) and was therefore rejected, much to the regret of the Dutch delegation, although they did not consider the Article perfect. The delegation did not, however, place its dismay on record in an explanation of vote. 6

Dissemination

Both the Geneva Conventions of 1949 and, in their wake, Protocols I and II of 1977 contain Articles on dissemination. The Articles in the Geneva Conventions (47/48/127/144) and in Protocol I (83) rest on the same basis; as Article 83 has it: the contracting States “undertake, in time of peace as in time of armed conflict, to disseminate the Conventions and this Protocol as widely as possible in their respective countries.” This undertaking is elaborated in the Articles of 1949 into an obligation “to include the study thereof in their programmes of military and, if possible, civilian instruction.” In the Netherlands, dissemination among the armed forces gradually got under way, so that at least a modicum of knowledge about the principles of the Conventions could be assumed to exist among the great majority of their members. Of recent years, under the influence of the activities surrounding the drafting of the Protocols and under the constant prodding of the ICRC (which sends out questionnaires on the subject at regular intervals), the instruction to the military was further improved. A different picture presents itself as regards the introduction of Geneva law principles into the “programmes of civilian instruction”. In the Netherlands, the central authorities do not fix these programmes in detail, the determination of school and university curricula being left in considerable measure to the autonomous governing bodies of these educational institutions. This being the case, the Dutch central authorities found in this situation a convenient excuse to spend no effort whatsoever on the dissemination of the Geneva Conventions at school or university level. Other institutions were not so entirely passive. Most notably, the Netherlands Red Cross Society gradually developed a considerable programme for the dissemination of the Geneva law among the civilian population at large, as well as among especially interested groups such as Red Cross volunteer workers, medical doctors, nurses and welfare workers. In this framework, the Netherlands Red Cross Society also took the initiative to the establishment at Leiden University of a special Chair for international humanitarian law applicable in armed conflicts; a noteworthy initiative with few precedents, but which deserves to be followed in 112 113

OR vol. VI p. 308: summary record of the 45th plenary meeting, 30 May 1977, para. 7. See the critical comment of Mr. Schutte in an explanation of vote after the adoption of the Article by Committee I, OR vol. IX p. 400: summary record of the 71st meeting, 29 April 1977, para. 7.

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other countries as well. The present author considers it an honour to be the first occupant of this Chair. Under Article 83 of Protocol I, the possibility of the central authorities maintaining their uninterested posture is reduced somewhat by the language adopted for that Article. The contracting States no longer undertake to do something “if possible”; henceforth, their undertaking will be “to encourage the study thereof by the civilian population.” Under the terms of this provision, they will be required to adopt a policy of active promotion – as indeed they should have done under the old provision. Article 19 of Protocol II, finally, merely lays down that this Protocol too “shall be disseminated as widely as possible.” While evidently, for a country like the Netherlands, the Geneva Conventions and Protocol I on international armed conflicts deserve the greater interest, it is surely to be hoped that in this as in other countries at least a fair measure of attention will also be devoted to Protocol II for the protection of victims of non-international armed conflicts.

Chapter 11 Development of Customary Law of Armed Conflict*

This intervention serves to explain that, and why, I entertain serious misgivings about the notion of customary law of armed conflict as it currently is often used. Far be it from me to deny the existence of custom as a source of general international law. In that framework, customary law is what states do in the belief that it is the legally correct thing to do: a practice recognised as law. But matters are not so simple in the sphere of the law of armed conflict, whether interstate or internal. In interstate war, a situation of conflict usually characterized by massive recourse to arms, the law of armed conflict is said to be the applicable rules states recognise as law, and rules that appear to stem from practice are asserted to belong to the body of customary law of war. But here begin my difficulties. First, no two wars are identical. Is it then justified to conclude from a trend of somewhat similar behaviour in some wars, that this trend sets a precedent for totally different wars? Was the Second World War identical to the first, and the war of 1980-1988 between Iran and Iraq similar to either of those? The Iran-Iraq war differs from the earlier examples in its significantly greater ruthlessness: if one takes the practice of the latter two states as the yardstick for future wars between states, this implies a much lower standard of customary law of war than is usually claimed to apply. Secondly, actual warfare is the business not of states but of human beings and, in any but the most limited wars, of vast numbers of human beings. Paraphrasing the famous dictum of the Nuremburg Tribunal that “[c]rimes against international law are committed by men, not by abstract entities,” I suggest that warfare is conducted by men, women and children, not by abstract entities called states. The individuals involved in actual warfare kill, maim and destroy with all available means, from massive firepower to insidious treachery. In the eighty-year war of national liberation the Dutch fought against the Spaniards in the 16th and 17th centuries, one rather formidable anti-personnel weapon occasionally employed (in effect, by a woman, Kenau Simonsz. Hasselaar) was boiling oil poured onto the heads of Spaniards who attempted to climb the walls of the city of Haarlem.

*

Paper based on intervention delivered on 27 Nov. 1998 at The Hague, in a colloquium organized by the Asser Institute.

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In the second Word War, Dutch resistance fighters in occupied Holland stabbed German soldiers in the back or pushed them into a dark canal. These were risky activities, but then, so is all warfare. Yet the perpetrators did not perceive their deeds as illegitimate acts of war. Here again, it may be very difficult if not outright impossible to conclude to any common practice “recognised as law”. It may be argued that since wars between civilised nations are fought first and foremost by their regular armed forces, the conduct of these forces is largely determined by what they have been trained to do. If this behaviour is in conformity with generally accepted standards, this will tend to confirm the validity of those standards. Yet, even in a war between civilised nations and waged with regular armed forces, very different conduct may occur, and this not just by way of accident but on a large scale and without any reflection on legitimacy. This may occur in particular when in the course of the war, training and discipline lose their grip and factors such as battle fatigue set in. But even apart from this factor, the behaviour of regular armed forces may be well below “generally accepted standards”. Today, many armed conflicts are waged within the territory of a single state, and by definition at least one of the parties to such an internal armed conflict has no regular armed forces. The majority of these wars are waged in parts of the world where Western standards, or even the ostensibly generally accepted standards of human rights, have not yet reached the general public. The individuals involved in such internal wars may respect the family or the clan but may have little respect for the life and wellbeing of other members of the population. Massive slaughtering occurs in consequence, with no noticeable inclination to discriminate according to age or sex. While this may be deplorable or even reprehensible, it is practice nonetheless, and a practice that may throw into doubt for such conflicts the validity of the distinction between combatants and civilians as a standard of customary law. As with interstate wars, not all internal conflicts are identical. But even in a more civilised situation like the forty-odd years old war in Colombia, distinguishing between combatants and civilians is far from established practice. While the left-wing guerrilla forces may express respect for the civilian population as a group, they actually respect only those individuals whom they consider as not connected in any way with the war: your paradigmatic “innocent civilian”. Thus, local or regional political leaders, or candidates for such positions, are not safe from attack or kidnapping. In their turn, the right-wing paramilitary forces have massacred large numbers of innocent people, including women, children and the elderly. Again, all of this may be most deplorable and indeed reprehensible, but it is not atypical. I am aware that the above misgivings stand in stark contrast to a dictum in a judgment of 1995 of the Colombian Constitutional Court. Affirmatively answering the question whether the government could accede to Protocol II without violating the Constitution, the Court held, surprisingly, that the whole of this

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Protocol (as well as Protocol I) is part of the customary law of war and, as such, is applicable in the conflict in Colombia. Perhaps even more surprisingly, the Court added that adherence to Protocol II would provide the parties to the conflict in the country with an excellent basis for the conclusion of agreements whereby they would promise actually to apply specific (sets of ) these applicable rules. In effect, an agreement of sorts was concluded some months ago between the ELN and civil society. It opens with the statement that the ELN of its own free will undertakes not to kidnap persons below the age of 18 and over 55. This is a step in the direction of the treaty prohibition and away from ELN’s long-standing practice of hostage taking, carefully balanced against the perceived needs of the situation. In light of all of this, the question is again whether the treaty ban on hostage taking in internal armed conflict has also entered into the body of customary law of war? I venture to doubt it. Obviously, Colombia is just one country. But let there be no mistake: it ranks among the more civilised of the states that currently are or recently were the theatre of armed conflict. Events in a number of other countries have stood in much sharper contrast to the standards set in the Geneva Conventions of 1949 and the Additional Protocols of 1977, or, indeed, to the standard of civilisation. Therefore, I maintain that if one looks at actual practice, there may be much less customary law of war than is occasionally claimed to exist. I have strong doubts, for instance, about the distinction between combatants and civilians or between military objectives and civilian objects, the prohibition of hostage taking or the prohibition on use of anti-personnel landmines. And if we are asked to believe in the existence of a customary ban on “ethnic cleansing”, I can only say that it finds no basis in current belligerent practice. 1

2

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On the judgment of the Constitutional Court, see, by this author, “Protocol II, the CDDH and Colombia”, in K. Wellens (ed.), International Law: Theory and Practice (1998) 597. Protocol II of 1977 applies in internal armed conflicts, and Protocol I, of the same year, in international armed conflicts. The promise in the “agreement” between ELN (the smaller of the two left-wing guerrilla movements) and civil society did not last long: shortly after its conclusion, ELN captured a civilian aircraft and took all those on board hostage. Conceivably, customary law may be on the rise in other related areas such as individual criminal responsibility. A Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) has recently held that the criminal responsibility of military commanders and other persons occupying positions of superior authority for the unlawful conduct of their subordinates is “a well-established norm of customary and conventional international law”, buttressing its claim with an impressive amount of practice. Prosecutor v. Zejnil Delalić et al., Judgement, 16 Nov. 1998, IT-9621-T, para. 333. Obviously, in a case like this, the facts to be taken into account are not the myriad acts of hundreds of thousands of people “in the field” but a manageable amount of practice that is also likely to rest on basically identical interests on all sides.

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What I have said thus far stands in marked contrast to what the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia has written in its decision on the defence motion for interlocutory appeal on jurisdiction in the Tadić case. The point at issue was the application of Article 3 of the Tribunal’s Statute to internal armed conflict, and the decision argues that since the 1930s, “international legal rules have increasingly emerged or have been agreed upon to regulate internal armed conflict.” However, in trying to prove the point on the emergence of rules of customary law the decision does not rest on what fighters do but on what wise men and women in responsible positions have stated to regard as desirable or required. Such persons may be expected to speak such soothing words, but this does not alter the state of custom, or the undesirable yet actual practice of warfare. In the foregoing, I have consciously overemphasised the element of practice, in the sense of the actual conduct in the field. I did this because I am afraid the element has been seriously neglected in recent discussions and writings. There is of course the other element I referred to a moment ago as “what wise men and women in responsible positions have stated to regard as desirable or required” or, in other words, the “principles of humanity and the dictates of the public conscience” (to quote the minimalist version of the Martens clause now found in the preamble to Protocol II). That these principles are part and parcel of the body of the law of war is evident, for instance, from the very definition in Article 2 of Protocol I of “rules of international law applicable in armed conflict”: they are “the rules applicable in armed conflict set forth in international agreements to which the Parties to the conflict are Parties and the generally recognised principles and rules of international law which are applicable to armed conflict.” These principles, on the distinction between combatants and civilians, on the prohibition of hostage taking, and so on and so forth, must be applied and enforced to the maximum in every armed conflict, whether international or internal, and whether “civilised” or “primitive”. They are rarely automatically applied: it usually takes considerable effort and perseverance to see them respected. They are, so to speak, the upper layer of the law of war, or the goals to be pursued. They are, in again different terms, the rules better men apply: the temperamenta belli of Grotius.

4

Prosecutor v. Duško Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Oct. 2, 1995, IT-94-1-AR72, para. 97. I myself have spoken such “soothing words” in “Applicability of Customary International Law in Non-international Armed Conflicts”, in A. Cassese (ed.), Current Problems of International Law (1975) 267.

PART 3 means and methods of warfare

Chapter 12 Grotius’ Jus in Bello, with Special Reference to Ruses of War and Perfidy*

The purpose of this contribution is to discuss the views which Grotius expressed in Book III of The Law of War and Peace on jus in bello in the narrow sense. Attention will be focused in particular on those aspects of the subject which fall under the headings of “means and methods of warfare” and, notably, “ruses of war and perfidy”, and an attempt will be made to relate Grotius’ views on these matters to the comparable parts of the law of armed conflict as it stands today. In war things which are necessary to attain the end in view are permissible.

Thus reads the first rule posited by Grotius at the outset of Book III, Chapter I, entitled “General Rules from the Law of Nature regarding what is Permissible in War; with a Consideration of Ruses and Falsehood.” The quoted phrase sounds ominously like a doctrine of military necessity at its most extreme. And indeed, when one reads what Grotius had to say about specific categories of people that may be killed and property destroyed according to the law of nature and the law of nations, it becomes clear that virtually unmitigated military necessity was the state of the law as Grotius perceived it. Thus, in Chapter IV, “On the Right of Killing Enemies in a Public War, and on other Violence against the Person”, Grotius listed among the “enemies” who may be killed: infants and women, captives, and those who have surrendered unconditionally. And in the next Chapter, “On Devastation and Pillage”, he went on to explain that enemy property may be destroyed and pillaged, even if it is sacred or consecrated. It is, in short, inadmissible to construe the basic rule in a different, more restrictive sense, as though Grotius had really wished to convey the message that * 1

2 3 4 5

Published earlier in A. Dufour, P. Haggenmacher & J. Toman (eds.), Grotius et l’ordre juridique international (1985) pp. 89-100. H. Grotius, De Jure Belli ac Pacis ( JBP), III, I, 2; the text used throughout is the translation by Francis G. Kelsey, as published by the Carnegie Endowment for International Peace as No. 3 of the Classics of International Law, Oxford, 1925. JBP, III, IV, 9. JBP, III, IV, 10. JBP, III, IV, 12. JBP, III, V, 1-3.

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in war, only those things are permissible which are imperatively necessary to attain the legitimate end of overcoming the military forces of the enemy; as though, in other words, he had anticipated as early as 1625 the basic rule of the Hague Regulations on Land Warfare of 1899 that “[t]he right of belligerents to adopt means of injuring the enemy is not unlimited,” or even the rule which prohibits the use of means or methods of warfare of a nature to cause unnecessary suffering. Nothing of the kind transpires from Grotius’ description of what he apparently regarded as the accepted modes of conducting war in his day. Admittedly, in placing on record that all these horrible things were regarded as permissible in a public war, Grotius did not imply that they were also right; on the contrary, he took great pains to explain that he was using the word “permissible” here “as referring to that which is done with impunity, although not without moral wrong.” That he did hold many of these accepted practices of warfare to be morally reprehensible becomes abundantly clear from a reading of Chapters XI-XVI, where he suggested a long series of “moderations” which those engaged in a lawful war ought to observe – even though neither the law of nature nor the law of nations obliged them to do so. So far as the manner of conducting operations is concerned, violence and frightfulness are particularly suited to wars.

While this sentence might appear to be yet another, bitter complaint about the character of warfare in his day, it is indeed the opening phrase of a section of Chapter I in which Grotius discussed virtually the only question he raised in this context, viz., “whether it is permissible to use a ruse in war.” A surprising question, to say the least. To the modern lawyer, the ruse of war represents as much a traditionally accepted method of warfare as does resort to violence: witness the Instructions for the Government of Armies of the United States in the Field, issued by order of the President of the United States in 1863, at the time of the Civil War, and more commonly known, after their author, as the Lieber Code: “… deception in war is admitted as a just and necessary means of hostility, and is consistent with honorable warfare…”

6 7 8 9 10 11

Art. 22; see also Art. 35(1) of the 1977 Protocol I Additional to the Geneva Conventions of 1949 (infra note 43). Art. 35(2) of Protocol I, being the modernized version of Article 23(e) of the Hague Regulations. JBP, III, IV, 2-5. JBP, III, I, 6,1. Ibid. The Instructions are reprinted in D. Schindler & J. Toman, The Laws of Armed Conflicts, 2nd ed. (1981).

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The question is all the more surprising in view of the self-evident acceptance of ruses of war as an honourable method of warfare in an earlier paper from Grotius’ hand, though one which was published only much later, under the title De fide et perfidia. Apparently, by the time he had come to write his magnum opus, hesitations had taken the place of his earlier firm conviction. Be this as it may, the question once raised led him into a lengthy discussion of the many and varied ways in which men can deceive each other. First of all, he discarded the extreme thesis that deceit is never permissible. As he noted at one place, and with an unexpected touch of realism, the rejection by some people of certain types of fraud which he (Grotius) considered permissible “… did not happen because they view such means of deception as unjust, but because of a remarkable loftiness of mind, and, in some cases, because of confidence in their strength.” The next step was to distinguish deceit in a negative guise from its positive counterpart. In Grotius’ opinion, deceit consisting in a negative action, i.e., dissimulation, constituted a permissible course of action. As for deceit consisting in a positive action, he introduced further divisions and subdivisions. For the greater part, his observations on this score are of a general and theoretical order; for present purposes, they are of strictly limited relevance. It may therefore suffice to mention the following points. Besides dissimulation, also pretence was held by Grotius to present a permissible mode of deceit. Pretence is deceit of the positive variety but exhibited in acts, as opposed to words. In the category of pretence he listed such actions as a pretended flight, and “… the actions of those of whom we read that they made use of the weapons, standards, uniforms, and tents of their enemies.” In an earlier era, use of the enemy’s standards and other heraldic paraphernalia would certainly have amounted to a violation of the code of chivalry – a notion, incidentally, which simply does not figure in Grotius’ description of the law of war. To him, use of the enemy’s uniform or standard was indistinguishable from that of his weapon or tent. All these acts he counted among those acts of pretence which “… may be employed by any one at his discretion, even contrary to custom; for the custom itself was introduced by the choice of individuals, not as it were by universal consent, and such a custom constrains no one.” A remarkable state-

12

13 14 15 16 17

See W. Fikentscher, “De fide et perfidia – Der Treuegedanke in den ‘Staatsparallelen’ des Hugo Grotius aus heutiger Sicht”, Bayerische Akademie der Wissenschaften, Phil.hist. Kl., Sitzungsberichte (1979). JBP, III, I, 20,1. Grotius repeats the same argument in his discussion of the right to use assassins (infra, text at note 32): III, IV, 18,3, para. 2 JBP, III, I, 7. JBP, III, I, 8,1. JBP, III, I, 8,4. JBP, III, I, 8,5.

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ment, to say the least, in the eyes of those who are acquainted with modern views on the formation of customary international law. Grotius next turned to falsehood, i.e., deceit in a positive mode but exhibited in words or signs; devices which, as he put it, “were invented as a means of expression under a mutual obligation.” Falsehood he considered the most difficult category to deal with. Accordingly, starting from the assumption that recourse to falsehood is not permissible in principle, he took a full twelve sections to examine this principle, and the various exceptions to it, from every angle. We need not follow him on this path. Rather, the following may be selected from this abundant material. In a general sense, Grotius stated, falsehood requires “… that what is spoken, or written, or indicated by signs or gestures, cannot be understood otherwise than in a sense which differs from the thought of him who uses the means of expression.” But this must be narrowed down: the “means of expression” must “conflict with the existing and continuing right of him to whom the speech or sign is addressed.” And this is followed by an explanation of what Grotius understood here by “right”; it was “not … every right without any relation to the matter in question, but that which is peculiar to it and connected with it. Now that right is nothing else than the liberty of judgement which, as if by some tacit agreement, men who speak are understood to owe those with whom they converse.” We shall revert to this statement at a later stage. As far as falsehood in war was concerned, Grotius had to concede that according to a strong body of opinion “… it [was] permissible to speak falsely to an enemy.” He mentioned in passing that he “assume[d] that nothing is settled here.” And he went on to proclaim in no uncertain terms that at all events, falsehood would not be permissible with regard to promises, even implied ones, and to oaths. “This holds true” – he added – “even among enemies, without any exception arising from the hostility existing at the time.” 18 19 20 21 22 23 24 25 26 27 28

JBP, III, I, 8,2. JBP, III, I, 9,1. JBP, III, I, 9-20. JBP, III, I, 9,1. Ibid., para.2. Ibid., para. 3. JBP, III, I, 17,1. JBP, III, I, 17,3. ]BP, IV, I, 18. JBP, III, I, 19. JBP, III, I, 18, para. 2. In the closing section of Chapter V (“On Devastation and Pillage”) Grotius made the point that with respect to the seizure of enemy property as well, “ruses which do not involve breach of faith are held to be permissible”; III, V, 4.

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So much for Grotius’ treatment of the question “whether it is permissible to use a ruse in war.” In Chapter IV, mentioned earlier, he elaborated the basic rule of Chapter I that “[i]n war things which are necessary to attain the end in view are permissible.” He made it abundantly clear that in a public war many terrible things were permissible under the law of nations, i.e., as explained above, could be done with impunity. In his assessment, as far as methods and means of warfare are concerned, very few limits were set to this freedom of action of belligerents. He perceived one such limit in the age-old prohibition “to kill any one by means of poison.” In his view, this practice was forbidden not so much by the law of nature, because “… in case it is permissible to kill a person, it makes no difference whether you kill him by the sword or by poison”: rather, the prohibition arose from “… the law of nations – if not of all nations, certainly of those of the better sort…” An interesting category indeed, these “nations of the better sort”; one can hardly fail to be reminded of the later “Christian” and the even more recent “civilized” nations. Another limit concerned a certain type of assassination. Not every use of assassins was forbidden in Grotius’ estimation; specifically, there was nothing against having an enemy killed in any place whatsoever by assassins who, with respect to that enemy, were “held by no bond of good faith.” “But” – he continued – “a different point of view must be adopted in regard to those assassins who act treacherously.” Grotius advanced the same reason for both prohibitions. As he explained with respect to poisoning: Agreement upon this matter arose from a consideration of the common advantage, in order that the dangers of war, which had begun to be frequent, might not be too widely extended. And it is easy to believe that this agreement originated with kings, whose lives are better defended by arms than those of other men, but are less safe from poison, unless they are protected by some respect for law and by fear of disgrace.

It is interesting to compare this argument with the paragraph from the Lieber Code, part of which was quoted earlier. It reads in full:

29 30 31 32 33 34 35

JBP, III, IV, 15. JBP, III, IV, 15,1, para. 1. Ibid. JBP, III, IV, 18, 1-3. JBP, HI, IV, 18,4. JBP, III, IV, 18,5. JBP, III, IV, 15, para. 2.

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The argument is very similar in both cases. Yet, on closer inspection, it strikes the eye that Lieber did no longer, as Grotius had done, confine his argument to the special risk run by kings: to him, treachery posed an unacceptable risk to all combatants without exception. I must retrace my steps, and must deprive those who wage war of nearly all the privileges which I seemed to grant, yet did not grant to them. For when I first set out to explain this part of the law of nations I bore witness that many things are said to be “lawful” or “permissible” for the reason that they are done with impunity, in part also because coactive tribunals lend to them their authority; things which nevertheless, either deviate from the rule of right (whether this has its basis in law strictly so called, or in the admonitions of other virtues), or at any rate may be omitted on higher grounds and with greater praise among good men.

With this paragraph Grotius opened Chapter X, on “Cautions in Regard to Things which are done in an Unlawful War”; and, with that, his discussion in this and subsequent chapters of the “moderations” which moral justice bade belligerents to observe. For the greater part, this discussion deals with matters which lie beyond the scope of our subject. Yet, it seems of sufficient interest to note more or less in passing that Grotius elaborated his views on “[w]ho may be killed in accordance with moral justice” into a long list of people who should be spared: thus, children; women, unless they had been guilty of an extremely serious offence; and old men; and those “whose manner of life is opposed to war”, such as people “who perform religious duties” as well as those “who direct their energies to literary pursuits;” also farmers, and merchants. Non-combatants, we would say nowadays, or: civilians. It is useful to realize, and a sobering thought, that, while quite extensive rules on the “general protection of the civilian population” have recently been codified in Part IV of Protocol I of 1977 (and a more

36 37 38 39 40 41 42

Loc. cit. supra, note 11. JBP. Ill, X, 1,1. ]BP, HI, XI, 2. JBP, III, XI, 9. JBP, III, XI, 10. JBP, III, XI, 11. JBP, III, XI, 12.

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modest set of rules in Part IV of Protocol II), the underlying idea of these very precise rules is that civilians should be spared as much as possible – that is, they can be spared the hardships of war only to the extent that military necessity in a strict sense permits. To achieve the “moderations” which Grottus advocated, those charged with implementing the new rules will have to set about their task with the will to push military necessity back within the narrowest possible confines; in doing so, they will be well advised to let themselves be guided by a strong sense of Grotian moral justice. Of direct relevance to the subject of “methods and means of combat” is what Grotius, always in the context of the “moderations” of moral justice, had to say about the treatment of adversaries. To begin with, he included prisoners of war among the list of people who should be spared, adding that “… in history those are praised who, when they might have been burdened or endangered by an excessive number of prisoners, preferred to release all rather than kill them.” We are reminded here of the rule laid down in Article 41(3) of Protocol I: When persons entitled to protection as prisoners of war have fallen into the power of an adverse Party under unusual conditions of combat which prevent their evacuation as provided for in Part III, Section I, of the Third Convention [of Geneva of 1949], they shall be released and all feasible precautions shall be taken to ensure their safety.

It is one thing for combatants to be told that they should not be deprived of their lives once they have been made prisoners of war, but another thing whether they will be made prisoners of war in the first place; whether, in other terms, they will be granted quarter. Grotius estimated that from the point of view of moral justice this was indeed the better course of action. This applied both to “those who yield upon condition that their lives be spared,” whose surrender “ought not to be rejected, either in battle or in a siege,” and to those “who yield themselves unconditionally to the victor, or who become suppliants.” While this already 43

44 45 46 47

Protocols I and II Additional to the Geneva Conventions of 12 August 1949 were adopted in Geneva on 8 June 1977 by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, and opened for signature in Berne on 12 December 1977. Protocol I relates to the protection of victims of international armed conflicts, and Protocol II to those of non-international ones. The text of both instruments as well as of the four Geneva Conventions of 1949, is found e.g. in Schindler & Toman, op. cit. supra, note 11. JBP, III, XI, 13,2, closing sentence. See the comment to this provision in M. Bothe, K.J. Partsch & W.A. Solf, New Rules for Victims of Armed Conflicts, The Hague, 1982, pp. 223-224. JBP, III, XI, 14,1. JBP, III, XI, 15.

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in large measure presaged the rules on quarter and safeguarding an enemy hors de combat in Articles 40 and 41 of Protocol I, Grotius went on to reject certain exceptions to the precepts which he advocated; exceptions which, he stated, “… are by no means just; as, for example, if retaliation is required, if there is need of inspiring terror, if too determined a resistance has been offered.” As is well-known, denial of quarter was resorted to in the course of the Second World War both as an alleged reprisal and as a measure to inspire terror; a notorious instance is the Commando Order, issued by Hitler on 18 October 1942. The prohibition to deny quarter, contained in Article 40 of Protocol I, does not specifically reject a desire to inspire terror as a possible excuse, nor does it need to do so, as this could not provide a legal excuse in the first place. The situation may appear different with respect to the equally absent prohibition to set the rule aside by way of reprisal. Solf notes this “curious omission”, but then goes on to explain why the omission is not all that significant: reprisal attacks against hors de combat adversaries are usually thought of as a response to an enemy who refuses quarter, but such an enemy would hardly be deterred by reprisal attacks against those of his combatants who seek to surrender to the enemy. Insofar as such reprisals merely discourage combatants from voluntarily giving up the fight and deprive friendly forces of a source of military intelligence, they afford no military advantage.

Moderation, finally, should also be observed with respect to things: destruction of property and devastation of (parts of ) a country, or a city, should not be resorted to if it would serve no useful purpose. This, Grotius added, applied with particular force with respect to those things which had been devoted to sacred uses and consecrated things, such as religious edifices and structures erected in honour of the dead. We have said that, in respect to character and extent, what is permissible in war is considered either absolutely or with reference to a previous promise. The first part of the subject has now been finished; there remains the latter part, which concerns the good faith of enemies with one another.

With these words, which open Chapter XIX, “On Good Faith between Enemies”, Grotius reverted to a question which he had touched upon earlier and which, although not altogether devoid of interest in his day, has acquired far greater 48 49 50 51 52

JBP, III, XI, 16,1. See F. Kalshoven, Belligerent Reprisals (1971) 157, pp. 184-193. In Bothe, Partsch & Solf, op. cit. supra note 45, pp. 221-223. Chapter XII. JBP, III, XIX, 1,1.

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significance since, with the development of an ever growing body of conventional law of war. To Grotius, public understandings resulting from an express or implicit promise and relating to war concerned such matters as the termination of war (Chapter XX) and, during a war, the establishment of a truce, the safe-conduct, and the ransom of prisoners (Chapter XXI). He examined to what extent lower officials could be competent to enter into such agreements (Chapter XXII). He explained that private persons too, whether they be combatants or civilians, could conclude (private) agreements with the enemy and thereby become bound in relation to the enemy by virtue of the principle of good faith (Chapter XXIII). Good faith, he emphasized, could be express or implied (Chapter XXIV). An instance of implied good faith would arise when a person asks or grants a parley: this, he stated, includes the promise “that it will be without hurt to those who take part in it.” Another example was the use of “mute signs which have a significance arising from custom”: thus, “[a]t the present time white flags are the implied sign of a request for a parley; they will, therefore, be no less binding than if the parley had been requested by word of mouth.” Use of the white flag as the indication of an intent to negotiate has subsisted to the present day and is, indeed, mentioned in so many words in Article 32 of the Hague Regulations on Land Warfare of 1899/1907. Protocol I of 1977 does not repeat these words and instead simply refers to the “flag of truce” (in Articles 57(1)(a), and 38) without specifying that this should be, or normally is, a white flag. Besides as a flag of truce the white flag is now moreover in common use as a sign of surrender. In either case, Grotius’ idea of good faith with respect to such signs is reflected in the express or implicit recognition these uses of the white flag have received in the rules relating to perfidy, misuse of recognized emblems, signs or signals, and safeguard of an enemy hors de combat (Articles 37, 38 and 41 of Protocol I, respectively). It remains for me to make up some sort of a balance with respect to the question of the relevance today of what Grotius had to say about the law relating to means and methods of warfare. A first remark is that I leave it to the historians to decide whether his description of the law of warfare according to the law of nature and the law of nations, i.e., without the “moderations” arising from considerations of moral justice, presents an accurate picture of warfare as practised in the Thirty Years War – the war under whose shadows he wrote. 53 54 55

JBP, III, XXIV, 3. JBP, III, XXIV, 5. “Condemned to exile and the service of alien kings, Grotius looked upon Europe through the smoke and flame of the Thirty-Years War, his sensitive nature astonished and revolted by the kaleidoscope of shifting alliances, the excess of the military, and the unrelieved privations to which the mass of the people were subject, and – perhaps for him the grossest absurdity of all – the earnest claim on every side that these horrors were somehow committed in the name of Jesus Christ.” M.C.W. Pinto,

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From the point of view of the modern military lawyer, Grotius’ treatment of the law relating to means and methods of warfare appears at first sight singularly inadequate. For one thing, as concerns form, he obviously made no effort whatsoever to present his material in a fashion and a style which could have made it digestible or even comprehensible to the average military man. We are told that today’s average soldier would suffer considerable difficulty if he were confronted with the texts which ultimately emanated from the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, held in this city of Geneva from 1974 to 1977, in the form of the two Protocols of 1977 Additional to the Geneva Conventions of 1949. Suppose our average soldier were to find his progress through the jungle of these legal texts further complicated by an interminable series of discourses and digressions of the Grotian variety – he surely would soon abandon his attempt to disentangle the mess and turn to a more favourable pastime. As regards substance, allusion was already made to the surprise occasioned by Grotius’ question whether ruses of war are permissible at all. The modern mind is trained to accept as axiomatic that, in the terms of the Hague Regulations, “Ruses of war … are considered permissible.” Yet, it should be realized that one of the rapporteurs of the Hague Peace Conference of 1899, Edouard Rolin, found it necessary to emphasize that this provision did not purport to lay down that each and every ruse of war was ipso facto lawful: on the contrary, it merely meant that ruses of war were not prohibited as such, and they would be unlawful whenever they were found to contravene another imperative rule. This brings to mind once again the question of the use of enemy uniforms. Under the terms of Article 37 of Protocol I, such use does not come under the head of perfidy, as it cannot be said to constitute an act “inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict.” Yet, it does not constitute a permissible ruse of war either: while Article 37(2) gives as examples of ruses of war “the use of camouflage, decoys, mock operations and misinformation”, Article 39(2) makes the “use of the flags or military emblems, insignia or uniforms of adverse Parties while engaging in attacks or in order to shield, favour, protect or impede military operations” the object of a separate prohibition. On a somewhat more general level, a parallel may be discerned between Grotius’ conception of falsehood, being the use of a means of expression conflict-

56 57

“The New Law of the Sea and the Grotian Heritage”, in T.M.C. Asser Instituut, Commemorative Colloquium on “International Law and the Grotian Heritage”, 8 April 1983, The Hague, Advance Papers (mimeographed) No. 2, at pp. 1-2. Art. 24. Conférence internationale de la Paix, La Haye 18 mai - 29 juillet 1899, published by the Dutch Ministry of Foreign Affairs in a new edition (1907), Part One at p. 40; Report of the 2nd Sub-Commission of the Second Commission.

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ing with a right of him to whom the falsehood is addressed, on the one hand, and recent developments regarding the notion of perfidy, on the other. While perfidy had been left undefined in the Hague Regulations, a definition was considered indispensable by the makers of the Additional Protocols of 1977. The formula as ultimately accepted is extremely complex. Yet, it may be clear from the phrase quoted in the previous paragraph that a crucial element in the definition finally agreed upon (and laid down in Article 37(1) of Protocol I) consists of the betrayal of confidence in a right of protection obtaining in the relation between the perfidious attacker and his victim. Of even more lasting value are Grotius’ views on the binding force of the law of war, as opposed to mere practice. It matters little that the law as he perceived it – i.e., the law of nature and the law of nations – provided very few limitations on the freedom of action of belligerents with respect to choice of means and methods of warfare. What counts is that the limits which he did recognize had to be respected, as he had it, “without any exception arising from the hostility existing at the time.” With respect to the “moderations” which Grotius proposed on the basis of considerations of moral justice, it may be noted that much of what he suggested, as well as a good many things which he did not even consider, have meanwhile been elevated to the status of positive international law, entailing precise legal obligations for states and individuals alike. Yet, as it was observed in the foregoing, to achieve in the practice of warfare a conduct even remotely resembling the written law, a constant appeal to the sense of moral justice of all parties will remain necessary as long as wars occur. Finally, even after the “reaffirmation and development” of major parts of the law of war achieved with the adoption of the Additional Protocols of 1977 and the conclusion in 1980 of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, the law-on-the-books is still far from perfect. The techniques and technology of war, on the other hand, continue to develop. There always remains the need, therefore, for the powers of this world to continue to discuss and negotiate improvements of the law of war, if possible alongside with steps towards a reduction of armaments; or, in Grotius’ terms, to consider “the common advantage, in order that the dangers of war, which [have] 58 59 60

On top of the elements contained in the formula quoted in the text above, the definition requires the “intent to betray that confidence”. Loc. cit. note 28. The Convention was adopted on 10 Oct. 1980 in Geneva by the UN Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, and opened for signature in New York on 10 April 1981. For the text see A. Roberts and R. Guelff, Documents on the Laws of War (1982).

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begun to be frequent, might not be too widely extended” –and this no longer mainly with respect to poison or the use of treacherous assassins.

61 62

Loc. cit. note 35. “Looking around us we see a picture which is every bit as uncomfortable [as the one observed by Grotius]. Grotius wrote his book to reinstall the rule of law in a seemingly lawless world, and he did so being fully convinced that there was a common law among nations. That was his deepest motivation. To carry on the Grotian quest with this same deep motivation may well be the best way to handle the Grotian heritage.” P.H. Kooijmans, How to Handle the Grotian Heritage, Second Cornelis van Vollenhoven Memorial Lecture, 29 March 1983, published by the Cornelis van Vollenhoven Foundation, Leiden; also published in 30 NILR (1983) p. 81, at p. 92.

Chapter 13 Incendiary Weapons: Legal and Humanitarian Aspects*

1

Introduction

Among the many aspects of the American participation in the Vietnam war that have irritated public opinion in and outside the United States, the extensive use of napalm drew particularly severe criticism. This negative appreciation leads to the obvious question whether the use of napalm was a legitimate course of action under the existing law of armed conflict. The purpose of this paper is to find and answer to this question and to the wider one of the legality of use of incendiary weapons in general. First, some history. While napalm may be a fairly recent acquisition in the arsenals of armed forces, the use of fire as a means of warfare goes back to the early days of human history; it has played an important role in many battles and sieges throughout history. This was true when wood was the main ingredient of many man-made structures, such as houses and ships. It has remained true to the present day, although stone and brick, concrete and steel have increasingly taken over the function of wood as the main building material. Combustible materials are present in most structures and the burning capacity of incendiary weapons has kept pace with the increased fire-resistance of steel ships and tanks or concrete buildings. There is no need to dwell at length on these facts, which are too well known to admit of elaboration. It may suffice to recall that incendiary means of warfare have developed from the bundle of burning material thrown into the enemy stronghold or city, through the Greek fire and the fire-ship directed towards the enemy fleet, to the incendiary bomb and napalm; and from the burning arrow to incendiary projectiles and the flamethrower. It may also be pointed out that at the time when the codification of the law of war was taken in hand, by the end of the 19th century, the use of incendiaries was common practice. 2 The Period up to the League of Nations Disarmament Conference While the Instructions for the Government of Armies of the United States in the Field, drawn up by Francis Lieber and published by order of the President

*

Paper prepared for SIPRI Symposium on incendiary weapons, August 1972.

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of the United States as General Order No. 100 on 24 April 1863, are completely silent on the use of incendiary weapons (and, for that matter, of other specific means of warfare, with the sole exception of poison), a first reference to incendiary weapons is found in the Declaration of St. Petersburg of 1868 to the Effect of Prohibiting the Use of Certain Projectiles in Wartime. The Declaration, designed to prevent “the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable,” contains the engagement of the contracting Parties “mutually to renounce, in case of war among themselves, the employment by their military or naval troops of any projectile of a weight below 400 grammes, which is either explosive or charged with fulminating or inflammable substances.” As is clear from the text, the Declaration was concerned with the use of the said light projectiles on the battlefield or, in other words, the protection of combatants against the use of a means of warfare the use of which against human beings was evidently considered to cause unnecessary suffering. The draft convention on the laws and usages of war Russia placed before the Conference of Brussels of 1874 reiterated the prohibition of “the employment of explosive bullets of a weight below 400 grammes and charged with inflammable substances”. The Declaration of Brussels of 1874, as adopted by the Conference, joins a reference to the prohibition of 1868 to the general rule concerning unnecessary suffering: Article 13(e) prohibits “the employment of weapons, projectiles or substances calculated to cause unnecessary suffering, as well as of projectiles prohibited by the Declaration of St. Petersburg of 1868.” At the Peace Conference of The Hague of 1899, interest in the question of incendiary weapons had dwindled. Two commissions discussed proposals relating to the use of weapons. The Second Commission, taking up Article 13(e) of the Declaration of Brussels, deleted the reference to “projectiles prohibited by the Declaration of St. Petersburg of 1868”, on the grounds that the competent Sub-

1

2

3

4

Text in Francis Lieber, Contributions to political science, including lectures on the Constitution of the United States and other papers, being Vol. II (1881) of his Miscellaneous Writings. The Lieber Instructions are reprinted in D. Schindler & J. Toman, The Laws of Armed Conflicts, 4th ed. (2004) p. 3. Para. 16: “Military necessity does not admit of cruelty – that is, the infliction of suffering for the sake of suffering or revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.” Art. 12 (F); Actes et documents relatifs au Programme de la Conférence de la Paix, publiés d’ordre du Gouvernement par Jhr Van Daehne van Varick, The Hague, 1899, Document B 6. Ibid., Doc. B 5.

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Committee of the First Commission had meanwhile adopted a text which , it was thought, might lead to an extension of the scope of that Declaration. The First Commission had before it a proposal for a declaration concerning expanding bullets, a type of bullet that had become known under the name of dum-dum bullets, after the arsenal in India where they were produced for use against the natives. After much discussion the Commission finally agreed on a text the language of which, as pointed out more than once in the debate, attempted to maintain a relationship with the Declaration of St. Petersburg: The employment of bullets which easily expand or flatten in the human body, such as explosive bullets, bullets with a hard envelope which does not entirely cover the core or is pierced with incisions, shall be prohibited.

However, in the Declaration finally adopted by the plenary Conference the reference to “explosive bullets” had been stricken out, turning the relationship to the Declaration of St. Petersburg into one more in spirit than in the flesh. It may be clear that in this early period, except for a momentary attention in the context of the Declaration of St. Petersburg, the matter of incendiary weapons had not aroused any great interest. At the same time, the prohibition on the use of means of warfare calculated to cause unnecessary suffering had found general acceptance and had been embodied in Article 23(e) of the Hague Regulations Respecting the Laws and Customs of War on Land. In the First World War, incendiary weapons were used on both sides, nor did this give rise to any particular protests after the war. The President of the International Committee of the Red Cross (ICRC), in a letter of 23 November 1920 to the Assembly of the League of Nations, urged measures for the protection of the civilian population against the hardships of war. These included “the prohibition of the dropping on towns of projectiles which carry death to the peaceable population, and to women and children unconcerned with the war” and the “absolute prohibition of the use of asphyxiating gas”, but incendiary weapons were not mentioned. Similarly, the Commission of Jurists which in 1923 drew up the (non-ratified) Rules concerning the Control of Wireless Telegraphy in Time of War and Air Warfare, whilst laying down detailed rules for air bombardment, did not refer to the use of incendiary bombs. On the other hand, it did state that “the use of tracer projectiles, whether incendiary or explosive, by or against an aircraft is not forbidden,” thus recognising that whatever the actual significance 5 6 7 8

Conférence internationale de la paix, la Haye 18 mai – 29 juillet, published by the Netherlands Ministry for Foreign Affairs, Part III, pp. 20, 30, 42, 81. Ibid., Part II at pp. 4, 11, 43, 50. Ibid., Part I at p. 55 and Annexes at p. 28. ICRC, Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, 2nd ed. (1958) p. 151.

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of the Declaration of St. Petersburg, its scope was in any event limited to land warfare. At the time, all attention was focused on the use of asphyxiating and other gases, a use which the First Peace Conference had foreseen and the horrifying effects of which had been amply demonstrated during the First World War. Understandably, therefore, the Conference on the Trade in Arms, held in 1925 under the auspices of the League of Nations, devoted part of its time to that subject. This resulted in the adoption of the Geneva Protocol of 1925 for the Prohibition of the Use Asphyxiating, Poisonous or other Gases and of Bacteriological Methods of Warfare. While this Protocol refers to the use of such gases and of all analogous liquids, materials or devices, there is no indication that incendiary means of warfare had been intended to be comprised either under the “other” gases or under the “analogous” liquids (etc.). In the absence of any such positive indication, it cannot be assumed that the adoption of the Geneva Protocol of 1925 has resulted in the prohibition of use of incendiary weapons. 3 The League Disarmament Conference The conclusion that the Gas Protocol of 1925 deals with chemical means of warfare proper and does not cover incendiary weapons is borne out by the history of the League of Nations Conference for the Reduction and Limitation of Armaments, held in Geneva from 1932-1934. This Conference aimed to achieve both quantitative and qualitative disarmament, with the latter defined as “the selection of certain classes or descriptions of weapons the possession or use of which should be absolutely prohibited to all States or internationalised by means of a general Convention.” In the terms of reference of the competent commissions, the weapons to be selected were defined as “those weapons whose character is most specifically offensive or those most efficacious against national defence or most threatening to civilians.” The Special Committee set up to deal with chemical and bacteriological weapons and other questions common to land, see and air armaments had no difficulty in finding that chemical and bacteriological means of warfare answered to the criteria set out above. It then took the initiative to add a third category, viz., incendiary weapons. It pointed out that such weapons, like chemical means of warfare but unlike ordinary weapons, “do not act by shock or trauma”: “They possess a specific means of action which assimilates them to chemical rather than to ordinary weapons.” The Committee therefore found it necessary to consider 9 10 11 12

Conf. D/C.G. 26(1). Conf. D/C.G. 28(2). Conf. D.120: Chemical and Bacteriological Weapons, Special Committee, Report to the General Commission, 31 May 1932. Ibid., para. 14.

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whether incendiary weapons fulfilled the three criteria for qualitative disarmament. The suggestion that incendiary weapons, rather than being assimilated to chemical weapons, might simply belong in that category evidently did not arise. In examining the character of incendiary weapons the Special Committee drew a distinction between projectiles and flamethrowers. Its argument relating to “bombs, shells, grenades, bullets, arrows, pastilles and other incendiary projectiles” emphasises the particular threat to civilians: In the first place, they are very effective in destroying urban centres and buildings in general. Secondly, whereas ordinary shells only cause damage at the point where they fall, the fires caused by incendiary projectiles are likely to spread considerably. Incendiary projectiles may be used to increase the horror of the effects produced by explosive projectiles. This threatening character is more pronounced as the range of the materials employed increases. This is particularly the case when inhabited places are bombarded by aircraft, since in such bombardments incendiary bombs are usually employed for the abovementioned purposes.

Apart from a convincing argument for the prohibition of incendiary projectiles, this was a perspicacious description of their character and use: as the report specifies, incendiary projectiles were regarded as particularly offensive by most of the delegations. In the resolutions adopted at the end of the Committee’s work the conclusion was drawn when it declared “that projectiles specifically intended to cause fires should be included in qualitative disarmament.” However, the Committee attached some exceptions to the proposed rule. Its definition would not apply “either to projectiles specially construed to give light or to be luminous and, generally, to pyrotechnics not intended to cause fires, or to projectiles of all kinds capable of producing incendiary effects accidentally.” It also considered that “qualitative disarmament should not extend to projectiles designed specifically for defence against aircraft, provided that they are used exclusively for that purpose.”

13 14

15 16

Ibid., para. 15. Sir John Simon, representative of the United Kingdom in the General Commission, defined particularly offensive weapons as “arms singularly calculated to assist attack against national defence.” Records of the Conference, Series B – Minutes of the General Commission, Vol. I, 115. This language makes clear, first, that the addition as a separate criterion of greatest efficacy against national defence was really redundant, and, second, that considerations of prevention of aggression were equally important in qualitative disarmament as were considerations of protection of the civilian population. Report of the Special Committee, Resolutions. Ibid., and paras. 16-17.

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As for “appliances such as flame-projectors designed to attack not objects but persons,” the Special Committee gave an entirely different reason for their prohibition, namely “the cruelty inherent in the use of these appliances, which cause suffering that cannot be regarded as necessary from a military standpoint.” A majority of the Committee held moreover that such appliances also possess a specifically offensive character. The conclusion in the Committee’s Resolutions was that “appliances designed to attack persons by fire, such as flame-projectiles, should be included in qualitative disarmament.” It should be emphasised that in order to ban the flamethrower the Committee had to go beyond its terms of reference and place reliance in the established principle prohibiting the use of all means of warfare calculated to cause unnecessary suffering. It had to do this in a context where the weapon at issue was intended for use especially against combatants – just like the light explosive projectile and the dum-dum bullet of earlier days. The General Commission accepted the considerations and conclusions of the Special Committee without discussion. The draft Resolutions concerning Conclusion of the First Phase and Preparation of the Second Phase of the Conference (discussed on 20 and 22 July 1932) mention under the “Conclusions of the First Phase of the Conference” that “[c]hemical, bacteriological and incendiary warfare shall be prohibited under the conditions unanimously recommended by the Special Committee” – a formulation the Commission adopted without vote. In the second phase of the Conference (destined to peter out in 1933 without having obtained any tangible results) the Special Committee dealt with the “question whereby qualitative disarmament could be effected”. Under this heading, the Committee discussed whether the prohibition on use of chemical, incendiary and bacteriological weapons should be absolute or subject to reciprocity; whether an absolute prohibition on wartime use could be accompanied with a prohibition of peacetime preparations of such use; whether supervision of the latter prohibition would be practicable; and, finally, what special sanctions should be envisaged for the event of a breach of the prohibition on use. 17 18

19

Ibid., paras. 18-19 and Resolutions. Records (op. cit. note 14) pp. 154, 180. The only opposition came from the Soviet representative, who felt that the General Protocol of 1925 already contained the same elements and that the proposed paragraph might induce governments which had not yet ratified or signed the Protocol, to refrain from doing so on the argument that the Disarmament Conference was still dealing with the matter; ibid., p. 180. Report of the Special Committee, para. 9; see also paras. 13, 19. The Resolution of July 1932 of the General Commission defined the task of the Special Committee in these terms: “Rules of international law shall be formulated in connection with the provisions relating to the use of chemical, bacteriological and incendiary weapons and bombing from the air, and shall be supplemented by special measures dealing with infringement of these provisions.” Records (op. cit. note 14) p. 155.

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The tendency at the Conference was to opt for an absolute prohibition on use rather than one subject to reciprocity. However, this would either require an effective ban on peacetime preparations or, at the very least, effective special sanctions for the event of a wartime breach. On this, the Special Committee ultimately concluded that a ban on peacetime preparations for incendiary warfare was virtually impossible and at best was doomed to remain ineffective. Nor did the Conference find a solution for the problem of special sanctions against violations of the prohibition on use. The comprehensive draft Convention on Disarmament which the British Government introduced in March 1933 in a last attempt to revive the dying Conference, had therefore returned to a prohibition subject to reciprocity: the draft text on the prohibition of chemical, incendiary and bacteriological weapons specified that the prohibition would not deprive “the victim of the illegal use of chemical or incendiary weapons of the right to retaliate, subject to such conditions as may hereafter be agreed.” In conclusion, while the Disarmament Conference at one time came close to an express prohibition of defined incendiary weapons, it ultimately failed to achieve its purpose – and the grounds for this failure have kept their interest for today.

20

21

22

The conclusions of the Special Committee are of sufficient interest to be quoted here in full: The apparatus and substances suitable for the conduct of incendiary warfare are not exclusively applicable to such warfare, with the exception of specifically incendiary shells and bombs; the latter are easily manufactured and can be quickly produced, but it would be possible to prohibit their manufacture, import, export or possession. It is not possible in practice to prohibit the manufacture, import, export or possession of incendiary apparatus and substances which are suitable for both peaceful and military purposes. No special training of armed forces is required for purposes of incendiary warfare. The Committee regrets that it is unable to suggest any other practical methods to enforce the prohibition of the preparation of incendiary warfare. Conf. D. 152; Chemical, Incendiary and Bacteriological Weapons, Special Committee, Second Session (Nov. 17 to Dec. 13, 1932): Reply to the Questionnaire submitted by the Bureau to the Special Committee, 13 Dec. 1932, p. 23. For a fuller discussion of the debate on methods of qualitative disarmament, with special focus on the question of sanctions, see this author’s Belligerent Reprisals (1971) p. 90 et seq. Art. 47; Conf. D. 157(1); Geneva, 7 March 1933.

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In the wars waged since the failure of the Disarmament Conference, all conceivable types of incendiary weapons have been used in all kinds of situation. Incendiary bombs, combined with other bombs, were in common use for the bombardment of industrial objectives or zones containing such objectives, and of inhabited areas in the case of terror bombardments. In some instances (Hamburg, Dresden) this resulted in firestorms which virtually annihilated entire built-up areas, killing or grievously injuring those living in the areas. The apotheosis of this development came with the attack with nuclear weapons in Hiroshima and Nagasaki, where the combination of explosive and incendiary effects culminated with that of radioactive radiation. These experiments were not repeated; only “conventional” incendiary bombs continued to be in use, although provided with ever increasing fire-raising power. A strong case can be made that such bombardments were as illegal at the time as they are today. This however is not the point at issue here, and it is another matter altogether to suggest that the use of incendiary bombs in the course of these bombardments had in and of itself been in contravention of the law in force at the time. To my mind, there is no sufficient ground to warrant such a suggestion. As with incendiary bombs, so too did flamethrowers remain in common use after the Disarmament Conference had singled them out for special attention. A typical and frequently effective use was against the occupants of pillboxes and similar structures, who were very difficult if not impossible to target with other means. This particular use throws into doubt the opinion of the Special Committee that flamethrowers typically “cause suffering that cannot be regarded as necessary from a military standpoint.” There is no denying the horrible suffering of soldiers attacked with flamethrowers, but the argument of overriding military necessity is hard to refute. This leads me to the conclusion that despite attempts in this direction at the Disarmament Conference, there is no question that the existing law would have prohibited all use of flamethrowers against combatants. The above conclusions do not appear to depend on the incendiary agents used in the various incendiary weapons. Yet the introduction and extensive use of napalm has given rise to strong protests throughout the world. Should one then come to a different conclusion for this particular incendiary agent? The term “napalm” has come to stand for a whole range of incendiaries and now in fact includes “all types of thickened hydrocarbons used as incendiary 23

24

See the Interim Report on Napalm and Incendiary Weapons published in 1972 by the Stockholm International Peace Research Institute (SIPRI), Appendix II: The Indiscriminate use of modern incendiary weapons. Supra, text at note 17.

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agents.” The various types are adapted to different purposes, conditions and methods of delivery. Thus, napalm can be the payload of incendiary bombs used against industrial or urban areas (this was the type of use napalm was specifically developed for during the Second World War); it can be used in the shape of firebombs delivered from the air against tanks and other military vehicles or fixed military installations; such fire-bombs (thin-walled containers filled with some hundreds of litres of napalm) can equally be employed as anti-personnel weapons against massed infantry, guerrilla fighters hiding in a dugout or enemy village; and so on. Then, napalm can be used in flamethrowers both of the portable and mechanised types. In view of this variety of possible uses, it is not hard to conclude that certain uses of napalm have been in contravention of existing law. It was often used in situations where civilians were particularly endangered and indeed constituted an important part of the victims. This was true of the napalm bombs dropped on enemy cities during the Second World War. It was equally true in more recent armed conflicts of the guerrilla type, where guerrilla fighters were found (or were suspected to be) in the immediate vicinity of, or intermingled with, the civilian population. There can be little doubt that in these situations napalm was used in plain violation of the principle of discrimination between combatants and civilians. The anti-personnel use of napalm, whether air delivered or ejected from flamethrowers, is bound to cause extreme suffering to victims who survive the attack. While this extreme suffering may be regarded as counterbalanced in some circumstances by the military interests at stake (as in the case, mentioned above, of attacks on pillboxes), in other situations the use of napalm as a means of incapacitating enemy combatants appears far from indispensable and, indeed, not specially effective. In such conditions it comes close to violating the prohibition on use of means of warfare calculated to cause unnecessary suffering. Yet, no matter how reprehensible such specific uses of napalm may be, the question at issue here is not whether these uses are in contravention of the law in force but whether the law of war provides a general prohibition of all use of napalm, irrespective of the situation and the military interests involved. In my considered opinion, no such general prohibition on the use of napalm can be distilled from the law in force. From a humanitarian point of view this presents a highly unsatisfactory picture of the law relating to the use of incendiary weapons. Not surprisingly, attempts have been made and are being made to introduce some legal restraints on the use of (certain) incendiary weapons. These attempts are the subject of the next section. First, it may be useful to look at the various available solutions.

25

Report of the Secretary-General on Napalm and other incendiary weapons and all aspects of their possible use, A/8803, para. 31.

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In effect, restraining rules may prohibit a weapon per se, or its use, or certain specific uses. The first two possibilities fall in the category of “qualitative disarmament”, presenting a mixture of humanitarian and disarmament law. The third possibility falls exclusively under the heading of the humanitarian law of armed conflict. A prohibition of incendiary weapons per se implies a ban on possession. Dependent on the terms of the agreement, such a ban could apply only in time of war or in peacetime as well. The Special Committee of the Disarmament Conference had this type of prohibition in mind as the most radical realisation of the idea of qualitative disarmament – and gave it up when it became convinced that peacetime preparations, stockpiling et cetera could not effectively be prevented. Prohibitions on use, the next step, can be of three types. One is the absolute prohibition which continues to bind a belligerent party even after it has become the victim of a violation by the adverse party. Such a prohibition may only be expected when the contracting parties believe that the prohibited weapon, either, will never be used, or consider its use so utterly reprehensible that they want to forswear it no matter what happens; or, alternatively, when the ban is accompanied with effective sanctions protecting the belligerent party, victim of a violation, against the adverse effects on its military situation. The Disarmament Conference pursued this latter idea for a while as the next best type of qualitative disarmament, inter alia with respect to incendiary weapons. In the end, however, it had to admit defeat here as well. Next comes the general prohibition on use but which is subject to reciprocity. Such a prohibition may in practice amount to little more than a no-first-use declaration. There remains the possibility of a prohibition on specified forms of use. A prohibition of this type might start out from, and reaffirm, the prohibition on use of weapons calculated to cause unnecessary suffering and the distinction between combatants and civilians. To be useful, it should then seek to create a somewhat broader margin of protection for one or both of these categories than these basic principles of the law of armed conflict already afford. In the light of this wide range of possible legal restraints on the possible use of weapons it is of interest to examine which avenues have actually been chosen to deal with the problem of incendiary weapons in particular. 5

Recent Trends and Expectations

In 1955, the ICRC published its Draft Rules for the Protection of the Civilian Population from the Dangers of Indiscriminate Warfare, as a first step towards a new, adequate codification of the areas of humanitarian law not covered in the Geneva Conventions of 1949. The draft articles on prohibited weapons in the text

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did not refer to incendiary weapons. As explained later, the ICRC had assumed “that the terrible damage to the civilian population by incendiary bombs was mainly due to their indiscriminate use,” and this was dealt with in another part of the Draft Rules. The second version, published in 1956 under the title Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, did include a prohibition on the use of “weapons whose harmful effects – resulting in particular from the dissemination of incendiary, chemical, bacteriological, radioactive or other agents – could spread to an unforeseen degree or escape, either in space or in time, from the control of those who employ them, thus endangering the civilian population.” (Art. 14) As explained in the comment on the draft article, whilst the protection of the civilian population had been the main motive and, indeed, the determining consideration for the proposed prohibition, it was meant to ban all possible uses of the weapons in question and, hence, to apply as between the armed forces as well. On the other hand, only such use of these weapons would be prohibited which would meet all the conditions enumerated in the text. The commentary points out that incendiary weapons “are sometimes limited in their effects e.g. the flamethrower or napalm when used against a tank, but sometimes have uncontrollable consequences as in the case of certain bombs scattering inflammable material over a considerable distance.” As it was the use not of entire categories of weapon (such as incendiary weapons) but of weapons producing certain effects the ICRC wanted to see prohibited, the conclusion may be that incendiary weapons with limited effects such as the flamethrower and (as it was then thought) napalm would stay outside the proposed prohibition. As is well known, the only time the Draft Rules were the object of serious discussion was at the 19th International Red Cross Conference held at New Delhi in 1957. With that, matters came to a standstill. As for Article 14, the discussion at New Delhi concentrated solely on the use of nuclear weapons. Incendiary weapons and napalm in particular were not mentioned in the debate. Things changed with the adoption of a series of three resolutions: Res. XXVIII of the 20th International Red Cross Conference (Vienna, 1965), Res. XXIII of the International Conference on Human Rights (Teheran, May 1968) and Res. 2444 (XXIII) of the UN General Assembly (December 1968). Herewith the discussion on the “reaffirmation and development of international humanitarian law applicable in armed conflicts” (the phrase currently used by the ICRC) was reopened. In February 1969, the question of napalm was among the issues submitted to a group of experts convened by the ICRC. The discussion was not 26 27 28 29

Part I, General Principle No. IV; Part II, Arts. 10, 11. Draft Rules, 2nd version (Geneva, 1958), commentary, p. 106. Ibid., pp. 102-103. Ibid., p. 104.

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conclusive: some experts held that napalm and other incendiary weapons cause a sort of asphyxia and therefore fall under the Geneva Protocol of 1925, whereas others had some difficulty with this assimilation of incendiaries to chemical and bacteriological weapons. The latter experts also pointed to the effectiveness of napalm and other incendiary weapons in given situations, and in their view, the important thing to do was to place restrictions on use of the weapons. The ICRC report concluded that for the time being, and without prejudice to a more complete prohibition, the only practicable course open to the Red Cross was the one pointed out by the last-mentioned experts. The UN Secretary-General in a report dated November 1969 endorsed this conclusion: Reminders to parties to conflicts that in any event the employment of incendiary weapons, such as napalm, should be accompanied by special precautions to prevent them from unduly affecting members of the civilian population or disabled members of the armed forces, or causing unnecessary suffering to combatants would therefore appear to be desirable. Moreover, in view of the reference to napalm in the Teheran Conference resolution, the legality or otherwise of the use of napalm would seem to be a question which would call for study and might be eventually resolved in an international document which would clarify the situation.

In his second report on the subject, of September 1970, the Secretary-General elaborated the idea of a further study of the effects of napalm on human beings and the living environment. Upon his suggestion,  the General Assembly at its twenty-sixth session, in December 1971, requested him to prepare, with the aid of qualified consultant experts, a report on the matter, extending it to cover “other incendiary weapons” besides napalm.

30

31

32 33 34

As to this argument, see supra, section 3. The experts referred not only to the League disarmament discussions but also to the fourth preambular paragraph of the Teheran Resolution, which mentions “the use of chemical and biological means of warfare, including napalm bombing.” It should be noted, however, that the Group of Experts consulted by the UN Secretary-General on the subject of chemical and bacteriological (biological) weapons and the effects of their possible use, did not include napalm in their study, on the ground that this means of warfare had better be treated in one category with explosives; Report of the Secretary-General, S/9292, para. 19. Reaffirmation and Development of the Laws and Customs Applicable in Armed Conflicts, report submitted by the ICRC to the 21st International Red Cross Conference, Geneva, May 1969, pp. 60-63. A/7720, 20 Nov. 1969, para. 200. A/8052, 18 Sept. 1970, para. 126. Res. 2852 (XXVI) of 20 Dec. 1971, operative para. 5.

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This extension was in line with a suggestion in a document on Protection of the Civilian Populations against Dangers of Hostilities that the ICRC had submitted to the Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, held in Geneva from 24 May to 12 June 1971. While not specifically entering into the question of napalm and other incendiary weapons, the Conference suggested that something ought to be done about the problem of weapons, especially those which were not the subject of discussion in the United Nations, the Conference of the Committee on Disarmament, or any other competent body. The second session of the Conference of Government Experts (Geneva, 3 May - 3 June 1972) had before it the text of the Draft Additional Protocol to the Four Geneva Conventions of August 12, 1949, as submitted by the ICRC. This dealt with the question of weapons under the heading, not of protection of civilians, but of combatants. Rather than proposing specific prohibitions against any particular weapon, draft Article 30 reaffirmed the principles stating that belligerents have no unlimited choice of means of combat and prohibiting the use of means of warfare calculated to cause unnecessary suffering (to which was added: or which are particularly cruel). The final paragraph provided a modified version of the Martens clause to the effect that pending the adoption of more complete regulations, in cases not provided for in the Protocol, the principles of humanity and the dictates of the public conscience would continue to safeguard populations and belligerents. While the ICRC commentary to the Draft Protocol offered no explanation of its marked reticence in respect of possible prohibitions on (use of ) specified weapons, its representative at the Conference explained the point to the Commission (III) that discussed the parts of the Draft Protocol that included Article 30. Other bodies, he said, dealt with the question of the prohibition of nuclear, bacteriological and chemical weapons, and it might be preferable that those bodies would deal as well with those “conventional” weapons that caused deep concern to public opinion. He appreciated the request to the UN Secretary-General to prepare a special study on the subject of napalm and incendiary weapons. Understandably, prohibitions of specific weapons so far had not been included in the Geneva Conventions: as he said, “the rules included in the Conventions were of an absolute nature, whereas the prohibition of weapons was subject to reprisals or even to reciprocity.” On the other hand, the effect of the 35 36 37 38

Doc. CE/3 b, 117. Report of the Conference, para. 477. The Report on the Work of the Conference was published by the ICRC in two volumes in July 1972. This statement cannot be denied a degree of veracity, although it disregards the serious attempts of the League Disarmament Conference to arrive at absolute prohibitions on chemical, incendiary and bacteriological weapons. It also disregards the absolute

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Geneva Conventions and of the proposed Protocol was to limit or indirectly to prohibit the use of arms by imposing greater respect for certain categories of persons and objects. These were the reasons why no prohibitions of specified weapons had been proposed in Article 30, and if such prohibitions should appear to be necessary, it might be preferable to embody these in a separate instrument. In the discussion, a variety of ideas were put forward and numerous amendments were submitted. While some favoured maintaining the gist of Article 30 as drafted by the ICRC, other ones aimed at introducing specific prohibitions: of weapons having indiscriminate effect, or of nuclear, bacteriological and chemical weapons in particular; of weapons destroying the environment; and of specified types of conventional weapon likely to cause unnecessary suffering to civilians and belligerents alike. Obviously, the last-mentioned category was the area where propositions relating to incendiary weapons could be expected. Actually, very few amendments to Article 30 referred expressly to incendiary weapons. One amendment, introduced by the experts of Egypt, Finland, Mexico, Norway, Sweden, Switzerland and Yugoslavia, proposed to prohibit the use, inter alia, of incendiary weapons containing napalm or phosphorus. Another amendment, submitted by the experts of the Netherlands, aimed at prohibiting certain weapons “for use in circumstances where they may affect the civilian population”, and among the weapons enumerated were “napalm bombs and incendiary weapons” (a description which was not meant to be technically precise, as it was left to experts to give such a more precise definition). The authors of the first-mentioned amendment argued that: disarmament negotiations were based primarily on strategic considerations, while the present ICRC conference started out from humanitarian concerns. Disarmament talks – which, they thought, had often not led to any results – sought the reduction or elimination of stockpiles of while maintaining a balance between the main opponents; at this conference, the authors [of the amendment] found it fully justified to seek the prohibition of the use of weapons which were blind and cruel.

39 40 41

42 43

character which at least the prohibition of bacteriological weapons has assumed with the adoption of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, signed 10 April 1972 in Washington, Moscow and London. Report, Vol. I, para. 3.14. Paras. 3.17 et seq. CE/COM III/C 33. The same language was later used in a Spanish amendment, CE/COM III/C 57 Rev. 1, which in fact was an attempt to bring together various amendments introduced by other delegations. CE/COM III/C 26. Para. 3.20.

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This reasoning brings to mind the history of the League Disarmament Conference. In the terms of that Conference, the proposed prohibition fell under “qualitative disarmament”; in other words, it would be a disarmament measure, excluding the use of certain weapons in armed conflict. At the Disarmament Conference, which had actually sought to bring about an even broader prohibition on use of incendiary weapons than the one now proposed, humanitarian concerns and strategic considerations had played an equally important part in determining whether such weapons met the criteria for qualitative disarmament. In one word, while the delegates to that Conference were no less idealistic or humanitarian than the authors of the present amendment, they were perhaps less naïve and more realistic in their approach to the problems involved in qualitative disarmament. To my mind, it is particularly naïve – and it represents a dangerous trend – to suggest that a discussion of arms limitations should be governed by other considerations in an ICRC-organised conference than in the context of disarmament talks. Conferences dealing with proposed rules on the conduct of hostilities should be equally realistic, i.e., basing themselves on the solid ground of military and humanitarian considerations carefully balanced, whether they take place in the sphere of the ICRC or the CCD. This criticism is levelled against the arguments used in defence of the amendment. As for its merits, the basic questions are whether “incendiary weapons containing napalm or phosphorus” are, in the terms of Article 23(e) of the Hague Regulations, weapons “calculated to cause unnecessary suffering”, or whether they have, in the language of the Disarmament Conference, a character “most specifically offensive or most efficacious against national defence or most threatening to civilians.” The authors of the amendment evidently answered these questions, or part thereof, in the affirmative; as one of them pointed out: “napalm might be an effective weapon against tanks invading a country, but it was necessary to refrain from using it against individuals or in circumstances where the civilian population was likely to suffer.” Nor did the amendment (which listed other conventional weapons as well) remain unsupported by other experts. The arguments of opponents concentrated on the opportunity of having a list of prohibited weapons (which was bound to be incomplete and transitory) and with the desirability of discussing arms limitations in this or in another forum, rather than with the merits or demerits of the weapons at issue or of specific incendiary weapons in particular. The conclusion seems therefore justified that there existed a strong tendency to get rid of napalm and phosphorus, for some, unconditionally, for others, provided the military balance be maintained. The amendment of the seven delegations was limited to incendiary weapons “containing napalm or phosphorus”. The legality of other incendiary weapons, they explained, should be “assessed in the light of the general principles forbid-

44

Ibid.

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ding needlessly cruel weapons.” The Dutch Amendment, on the other hand, encompassed “napalm bombs and other incendiary weapons.” Yet, this amendment purported solely to protect the civilian population and left untouched the use of incendiary weapons among combatants (and this not merely against tanks but against personnel as well). Intended as a compromise between the total prohibition on use proposed by the “seven” and the unwillingness demonstrated by a number of important delegations to accept any express prohibitions, the proposal actually belonged under the heading of protection of the civilian population rather than of arms limitations or “qualitative disarmament”. The discussions at the Conference of Government Experts had made clear that further study was required. This realisation resulted in a suggestion that the ICRC arrange a meeting of legal, military and medical experts to examine the problems involved. A written proposal to that effect introduced in plenary by the experts of nineteen governments drew widespread support. Not long after these events, in October 1972, the UN Secretary-General published his report on Napalm and Other Incendiary Weapons and All Aspects of Their Possible Use. The report is documentary in character and describes both the technicalities of the agents and weapons in question as well as the military and medical aspects of their use. The closing chapter goes one step further, linking up the documentary evidence to the known principles and rules of the law of armed conflict. Pointing out that the use of incendiary weapons often has indiscriminate effects and that much of the injury they cause may be superfluous, it concludes that there is an “urgent need for international consideration of effective measures of disarmament concerning incendiary weapons,” or, in the more precise terms of a final paragraph, the need “of working out measures for the prohibition of the use, production, development and stockpiling of napalm and other incendiary weapons.” This conclusion leaves many important questions open. What should be banned: all conceivable types of “napalm and other incendiary weapons” or only specified types, and, if so, which ones? Should the prohibition on use be absolute or subject to reciprocity? Can their “production, development and stockpiling” be effectively prohibited? Nor does the answer to these and suchlike questions follow readily from the earlier, documentary chapters of the report. As was the case with the discussions in the Conference of Government Experts, so too does 45 46 47 48 49 50 51

Ibid. CE/SPF/2. Complying with this request, the ICRC arranged a meeting of some 30 experts which held two sessions, in February and June 1973. A/8803, 9 Oct. 1972. Para. 186. Para. 187. Para. 184. Para. 193.

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this report leave ample room for further expert investigation – not to mention the ensuing political debate on the desirability and feasibility of this, that or the other solution. The General Assembly in its 27th session, in December 1972, wisely confined itself to commending the report “to all Governments and peoples” and inviting the comments of governments. As a result of an amendment proposed by Jordan, Kenya, Syria and Uganda, the resolution also “deplores the use of napalm and other incendiary weapons in all armed conflicts;” an unqualified statement which can hardly be regarded as a useful contribution to the solution of the problems posed by the existence since time immemorial and recent further development of incendiary weapons. 6

Speculations de Lege Ferenda

In the light of the foregoing, there can be little doubt that “something ought to be done” about incendiary weapons. The question is: what, and about which weapons in particular? Without any pretence at knowing the answers to these questions, it may be useful to review the various possible solutions and to attempt an evaluation of their desirability and feasibility, starting out with the extremes and gradually working our way to the middle – where, as so often, the greatest chances of success may lie. One extreme would consist of a resolution of the UN General Assembly “deploring” or “condemning” the use (possession, production) of incendiary weapons or even qualifying all of this as unlawful, contrary to the Charter, and so on. I venture to submit that, no matter the significance of General Assembly resolutions, a resolution of this type will have singularly little impact on the practice of incendiary warfare. Any solution, in order to be effective, needs to be of the conventional type and the treaty in question ought to have the widest possible adherence. At the other extreme one finds the perfect disarmament agreement banning the use, possession, development, stockpiling et cetera, in time of war as in time of peace, of all incendiary weapons. Keeping in mind the reluctance of states to enter into a treaty of this kind concerning the even more reprehensible and less commonly used chemical weapons, the assumption that such a treaty could be brought about any time soon on incendiary weapons seems unrealistic. 52

53 54

SIPRI’s Interim Report (supra note 23) was published at about the same time. Its annexes usefully supplement the documentary material in the report of the SecretaryGeneral. Res. 2932A (XXVIII), 29 Nov. 1972. The only immediate effect of the amendment was to force fifteen mainly Western states to abstain in the vote on the resolution.

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Apart from this political assessment, it may also be doubted that the disarmament part of the treaty could ever be effective. In practice, the treaty would therefore amount to nothing more than a ban on use of all incendiary weapons. It would be a matter for expert investigation whether a disarmament-type treaty could make sense for certain well-defined categories of incendiary agents or weapons. If so, the conclusion of such a treaty would be a worthwhile goal, especially if the effort could be combined with the adoption of rules restricted to limiting or banning the use of other types of incendiaries, thus avoiding the effect that the disarmament measure relating to one type of incendiary drives belligerents to intensify the use of alternative types. This leaves what to my mind is the most realistic approach to the matter, which is to pursue the conclusion of a treaty limiting or prohibiting the use of (all or some) incendiary weapons. The minimum solution would be a provision along the lines of the Dutch proposal at the Conference of Government Experts, prohibiting such use in circumstances where the civilian population might be endangered. This would considerably enlarge the measure of protection of the civilian population against the effects of use of such weapons, since under existing principles of the law of armed conflict the most the civilian population may expect is not to be made the object of direct attack, to be spared as much as possible in the event of attacks on military objectives and in particular not to be made to suffer disproportionate damage as a consequence of such attacks. Although the above minimum solution would offer combatants no protection whatever from the use of incendiaries, it might be pursued nonetheless if it were apparent that progress in the protection of combatants may not be expected anyway. However, there is no reason to start out from this premise. This leads to the question whether there might be value in a prohibition on the use of incendiary weapons as anti-personnel weapons. At first glance, this may look like a valuable suggestion. After all, besides the use of incendiaries against the civilian population and urban areas, it is precisely their use against “soft targets” like enemy soldiers, guerrilla fighters and so on that has given rise to the strongest protests and is most often considered to cause unnecessary suffering. Yet, I would not attach much value to such a provision. It seems highly unlikely that in battlefield conditions (as opposed to the theorist’s study) attacks with incendiary weapons could be restricted to “hard targets” such as tanks, pillboxes, gun emplacements et cetera. At all events, the excuse that the gun was the target and the infantry men in its vicinity were accidentally hit lies readily at hand. The result will be that the prohibition on anti-personnel use will soon have become a dead letter. 55 56

Supra, text at note 42. This argument applies to the international law prohibition of anti-personnel use. Obviously, a prescription to this effect in an army field manual can be effective if it is rigorously enforced.

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All things considered, I opt for a prohibition on use of incendiary weapons in all circumstances as the optimum solution within reach in present-day conditions. Evidently, such a sweeping prohibition cannot be expected to apply without exceptions. The Special Committee of the Disarmament Conference excepted tracer ammunition; other specific incendiary weapons may have to be excepted as well, either because they just cannot be effectively prohibited (e.g., the Molotov cocktail) or because their military utility outweighs the suffering they cause. This, again, will be a matter for expert investigation. Another matter deserving further discussion would be the modalities of any future prohibition on the use of incendiary weapons. In particular, should it be absolute, i.e., leaving the party victim of an attack with the prohibited weapon no room for retaliation? On this question, I confine myself to the following considerations. The idea of creating special sanctions (e.g., prompt and effective measures against the violator by the Security Council or, vaguer, the “world community” or, again, on a regional basis) seems as much of an illusion today as the idea of effectively prohibiting preparations. On the other hand, the use of incendiary weapons has nothing as weird and “inhuman” as has the use of bacteriological means of warfare. Indeed, the use of the former appears as much part of the normal pattern of warfare as the latter would seem to be out of the ordinary. In these circumstances, the only realistic approach may be to be content, for the time being, with an attempt to achieve a prohibition on use of incendiary weapons that is either expressly or implicitly subject to reprisals in kind or, even, reciprocity. Nor would this be a negligible achievement: the fear of retaliation has earlier proved to represent a powerful incentive to the faithful observance of arms limitations. Moreover, results in the sphere of qualitative disarmament to this day have been so scarce that even a seemingly modest achievement would be welcome.

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On the implications of such a qualified prohibition, see Belligerent Reprisals (supra note 21), section 7.1.3.

Chapter 14 The Soldier and his Golf Clubs*

The purpose of this paper is to discuss some aspects of the principles of international humanitarian law relating to the choice of weapons of war. While its source of inspiration lies in remarks made by Jean Pictet in the course of a conference on weapons held in 1974, the discussion takes as its point of departure the St. Petersburg Declaration of 1868, whereby the Contracting Parties engage mutually to renounce, in case of war among themselves, the employment by their military or naval troops of any projectile of a weight below 400 grammes, which is either explosive or charged with fulminating or inflammable substances.

The Declaration, creation of an International Military Commission assembled for that purpose at St. Petersburg, admittedly was of strictly limited import from a substantive point of view, and it was doomed to lose the greater part even of this modest significance as a consequence of developments in the techniques of war. Yet, it stands out as a remarkable achievement, on two counts. First, this was the first time ever for an international agreement to put a stop to the use in war of a specific small-arms munition which, although reprehensible from a humanitarian point of view, at the same time was certainly not devoid of all military utility. The main importance of the Declaration, however, doubtless lies in the remarkable statement of principles which precedes the quoted substantive provision: That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; That for this purpose it is sufficient to disable the greatest possible number of men;

*

1 2

Published earlier in C. Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles, in Honour of Jean Pictet (1984) pp. 369385. Conference of Government Experts on the Use of Certain Conventional Weapons, Lucerne, 24.9-18.10 1974. See infra, text at note 37. Declaration reprinted in D. Schindler & J. Toman, The Laws of Armed Conflicts (1973) p. 95.

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Chapter 14 That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable; That the employment of such arms would, therefore, be contrary to the laws of humanity.

By this preamble, the St. Petersburg Declaration can with some justification be said to have furnished the basis for the entire body of international humanitarian law of war as it has developed since. It dealt, in effect, with the core problem of that body of law, which is the confrontation between the “necessities of war” and the “requirements of humanity”: at what point ought the former to yield to the latter? Both, it should be emphasized, were entirely legitimate considerations in the eyes of the members of the International Military Commission, and they have remained so to the present day. The conflict is easily resolved whenever one of the two opposing forces is clearly the weaker one, perhaps even to the extent of being virtually negligible. Thus, no one will probably object on humanitarian grounds to the contention that an isolated munitions dump may be attacked and destroyed, even though it is foreseeable that a soldier guarding the dump may lose his life as a consequence of the attack. Again, the requirement that prisoners of war must be detained in a safe place will meet with little or no protest on grounds of military necessity. In many other instances, however, the solution does not lie so readily at hand, and it must then be arrived at through a difficult process of weighing the various factors involved in the equation. The principal factors emerge clearly from the quoted preambular paragraphs: they are: the distinction between the “military forces” of the enemy State and its civilian population, and military necessity defined as the need “to disable the greatest possible number of men” without employing means that would uselessly aggravate their fate. The principles enunciated in the preamble of the St. Petersburg Declaration of 1868 proved far more durable than the specific rule they preceded; indeed, they were very much in the minds of those participating in the weapons conference of 1974, mentioned in the opening paragraph. Prior to turning to that event, however, we will examine the influence of these principles at an earlier occasion, viz., the Hague Peace Conference of 1899. This influence is conspicuous even in the very terms of the Hague Convention and Regulations Respecting the Laws and Customs of War on Land. The preamble to the Convention, in its version of 1899, refers to the “desire to serve … the interests of humanity and the ever increasing requirements of civilization” and the concomitant “desire to diminish the evils of war so far as military necessities permit”; and Article 23(e) of the Regulations lays down the prohibition “to employ arms, projectiles, or material of a nature to cause superfluous injury” (in the English version of 1907: “calculated to cause unnecessary suffering”). Then, an 3

See Schindler & Toman, op. cit. note 2, p. 57.

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express reference to “the sentiments which found expression in the Declaration of St. Petersburg” was included in the preambles to the three Declarations adopted in 1899 and by which the Contracting Parties agreed: –

– –

to prohibit, for a term of five years, the launching of projectiles and explosives from balloons, or by other new methods of a similar nature (Declaration IV, 1); to abstain from the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases (Declaration IV, 2); and to abstain from the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions (Declaration IV, 3)

While it may thus be evident that the principles of 1868 did exert a certain influence at the Hague Peace Conference of 1899, their real impact on the decisionmaking process at this Conference can only be measured through an examination of its records, and notably those of the First Commission. This Commission had been charged with studying an ambitious programme, set out in the circular letter of the Russian Government of 30 December 1868 in the following terms: 1o. Entente stipulant la non-augmentation pour un terme à fixer des effectifs actuels des forces armées de terre et de mer, ainsi que des budgets de guerre y afférents; étude préalable des voies dans lesquelles pourrait même se réaliser dans l’avenir une réduction des effectifs et des budgets ci-dessus mentionnés; 2o. Interdiction de la mise en usage, dans les armées et les flottes, de nouvelles armes à feu quelconques et de nouveaux explosifs, aussi bien que de poudres plus puissantes que celles adoptées actuellement tant pour les fusils que pour les canons; 3o. Limitation de l’emploi, dans les guerres de campagne, des explosifs d’une puissance formidable déjà existants et prohibition du lancement de projectiles ou d’explosifs quelconques du haut des ballons ou par des moyens analogues; 4o. Défense d’employer dans les guerres navales des bateaux torpilleurs sousmarins ou plongeurs, ou d’autres engins de destruction de la même nature; engagement de ne pas construire, à l’avenir, de navires de guerre à l’éperon;…

4 5 6 7

Ibid., p. 141. Ibid., p. 99. Ibid., p. 103. “Circulaire du Comte Mouravieff aux Représentants diplomatiques accrédités auprès de la Cour de Saint-Petersbourg”, in Actes et Documents relatifs au Programme de la Conférence de la Paix, published by government order by Jonkheer van Daehne van Varick (1899).

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As may be evident from a lecture of these paragraphs, the concerns of the Russian Government were as much of a peace-oriented as of a humanitarian order. The former concern had strong budgetary implications: new inventions in the field of weapons technology tended to make the maintenance of a sufficient military capacity an increasingly expensive affair. The Russian suggestions, therefore, aimed at least in part at what nowadays is termed measures of disarmament. The question of principle involved in these ideas came up for discussion in the First Sub-commission of Commission I, which had been allotted land warfare in particular. The question was formulated in the following terms: Y a-t-il lieu de renoncer conventionnellement à l’emploi de tout perfectionnement nouveau dans l’art de la guerre et d’interdire la mise en usage dans les armées et les flottes de nouvelles armes à feu quelconques et de nouveaux explosifs, aussi bien que de poudres plus puissantes que celles adoptées actuellement tant pour les fusils que pour les canons?

It soon emerged that, although the beneficial effects of such a stop on the military budgets were evident to all, the hesitation actually to take it was equally widespread. Thus, the representative of the United States, Captain Crozier, let it be known that his Government “did not desire to limit itself in regard to the case of new inventions having for object the increase of efficiency of military weapons.” Again, the German technical delegate, Colonel von Gross von Schwarzhoff, although of the opinion that the means of warfare actually in existence were sufficient, added that “on ne peut se lier les mains d’avance car on ignore les moyens plus humains qui pourraient être inventés dans l’avenir.” A remarkable statement, which leaves one wondering whether in the eyes of the German delegate considerations of humanity were indeed so utterly dominant in the evaluation of future weapons developments as to exclude all other considerations. In the course of the debate both in this and in the Second Sub-Commission (charged with sea warfare in particular) numerous suggestions for specific restrictions were discussed. Few led to a positive result: they were in effect those embodied in the three Declarations mentioned above. A brief discussion of the motives leading to each of these restrictions is in order here. The prohibition to launch projectiles or explosives from balloons or analogous means, still very much a futuristic concept at the time, was accepted by the First Sub-Commission without a great deal of debate. The Dutch General den Beer Poortugael, supporting the proposal, asked rhetorically: “Ne semble-t-il 8 9 10 11

Conférence internationale de la Paix, La Haye 18 mai-29 juillet 1899, published by the Dutch Ministry of Foreign Affairs in a “new edition” (1907), Part II, p. 42. Ibid., p. 43. Ibid., p. 8. Ibid., p. 49.

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pas excessif d’autoriser l’emploi de machines infernales qui paraissent tomber du ciel?” Only after the proposal had been adopted did Captain Crozier express doubt that humanitarian motives could justify the ban, and he pointed to the possibility of future developments making the use of air-dropped munitions acceptable: Nous sommes sans expérience dans l’usage d’armes, dont nous proposons d’interdire, à jamais, l’emploi. Qui peut dire que supposant qu’on arrive à inventer des procédés pratiques d’employer les ballons, si cette invention ne sera pas de nature à rendre possible l’emploi au point critique du champ de bataille, dans des conditions tellement définies et concentrées, que cet emploi décidera de la victoire, partageant ainsi la qualité qu’ont toutes les armes perfectionnées de localiser à des points importants la destruction de la vie et des biens et d’épargner les souffrances de tous ceux qui ne se trouvent pas à l’endroit même où se décide l’issue; cet emploi tend à diminuer les maux de la guerre et à favoriser les considérations humanitaires, que nous avons en vue.

When the matter came up next in Commission I, he reiterated his views but declared himself prepared to accept the proposed ban for a limited period of five years. In this, he gained the support of several other delegates. The observations of one of them, the French General Mounier, are particularly illuminating in that he alluded in even more explicit terms than Captain Crozier had done to the distinction between combatants and civilians: Aujourd’hui les projectiles lancés du haut d’un ballon peuvent faire des victimes parmi les non-combattants. Mais l’usage de ballons plus perfectionnés peut devenir un moyen pratique et licite de faire la guerre.

After these deliberations, the proposal was accepted for a five-year period, mainly, it appears, on the ground that the means of warfare at issue was perceived to pose for the time being an incalculable risk to the civilian population. Gas projectiles, the use of which was prohibited by the second Declaration of 1899, were again something of the future. The Russian technical delegate, Captain Schéine, who introduced the proposal to ban these projectiles from use, referred to them as: “une nouvelle sorte d’explosifs, dont l’invention paraît possible.” Considerations of humanity were evidently paramount in the minds of the delegates deliberating this issue. For the overwhelming majority who expressed themselves in favour of the proposed prohibition, the main argument appears to have been the barbaric and unnecessarily cruel character of such a type of 12 13 14

Ibid., p. 57. Ibid., p. 7. Ibid., p. 64.

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weapon. This common feeling was given eloquent expression by Captain Schéine (who addressed the question from the point of view of warfare at sea): Beaucoup de personnes peuvent être sauvées même si elles sont blessées ou mises hors de combat, dans le cas où un navire est coulé par une torpille. Les gaz asphyxiants, au contraire, extermineraient l’équipage entier. Ce procédé irait donc à l’encontre de l’idée humanitaire qui doit nous diriger: trouver les moyens de mettre les ennemis hors de combat sans les mettre hors de ce monde.

The only dissenting voice came from the American delegate, Captain Mahan. His argument is worth quoting in full: 1o. L’objection qu’un engin de guerre est barbare a toujours été faite contre les armes nouvelles qui pourtant ont fini par être adoptées. Au Moyen Age, on adressait aux armes à feu le reproche d’être cruelles; plus tard, on s’en est pris aux obus et récemment encore – l’orateur s’en souvient très bien – aux torpilles. Il ne lui parait pas démontré que les projectiles à gaz asphyxiants seraient des engins inhumains ou inutilement cruels, et ne donneraient pas de résultat décisif; 2o. Il est le représentant d’une nation qui est animée d’un vif désir de rendre la guerre plus humaine, mais qui pourra se trouver forcée à faire la guerre, et il s’agit donc de ne pas se priver, par des résolutions hâtivement prises, de moyens dont plus tard on pourrait se servir utilement.

In the end, the Conference adopted the proposal with only the votes of the United States and Great Britain against. The third proposal to be discussed here and which led to the prohibition to employ so-called “dum-dum” bullets, was the one which gave rise to the longest and most fierce debate. This in contrast to the initial impression: in a first round of discussion in the First Sub-Commission, all delegates indicated their acceptance in principle and, subject to drafting changes, of the proposed ban. But this tranquil atmosphere in the Sub-Commission was radically disrupted when at the second reading, the British General, Sir John Ardagh, raised the question of war against savages: Dans la guerre civilisée, un soldat pénétré par un petit projectile est blessé; il se retire à l’ambulance, il n’avance plus. Le sauvage est bien différent. Quoique transpercé deux ou trois fois, il ne cesse pas de marcher en avant, il n’appelle pas 15 16 17 18

Ibid., p. 9. Ibid., p. 65. Ibid., pp. 46-47. Ibid., p. 50.

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les infirmiers, il avance toujours, et avant qu’on ait eu le temps de lui expliquer qu’il est en contradiction flagrante avec les décisions de la Conférence de La Haye, il vous tranche la tête.

This was a rather unfortunate approach to what was in reality a technical question of calibre and stopping power. Be this as it may, the first speaker to take issue with Sir John’s views was the Russian technical delegate Raffalovich: they were “contraires à l’esprit qui domine cette fin du XIXe siècle”; and he added another ground for his rejection: Au surplus, avoir deux sortes de projectiles, l’une pour les sauvages, l’autre pour les civilisés, c’est compliquer l’armement. On peut prévoir l’hypothèse de soldats stationnés hors d’Europe, armés de balles à l’usage des sauvages et se trouvant dans le cas de combattre des troupes régulières d’un État civilisé. Il leur faudrait alors deux sortes de cartouchières.

Another member of the Russian delegation, Colonel Gilinsky, argued that Sir John’s objection was in effect unnecessary: Dans la Déclaration de St. Pétersbourg de 1868, les Puissances contractantes ont décidé de ne pas employer ces balles dans la guerre entre elles. I1 est évident qu’il y a une lacune dans la déclaration de 1868, lacune qui permet d’employer contre les sauvages non seulement les balles “dum-dum”, mais même les balles explosibles.

The Sub-Commission thereupon adopted the proposal with only the British vote against. But the debate was to be reopened twice, both in Commission I and in the plenary Conference. In Commission I, Sir John Ardagh explained at length the technical grounds why his Government could not accept the proposed formula. From this statement, the concluding paragraph is worth quoting here: Toutefois, je désire répéter que nous sommes complètement d’accord avec les principes humanitaires proclamés dans la Convention de St. Pétersbourg, et que nous tâcherons d’en observer non seulement la lettre mais aussi l’esprit, en cherchant une solution sur la question du modèle de projectile à adopter. Je puis assurer la Haute Assemblée qu’il m’était très désagréable de me trouver obligé de voter, à cause des motifs que je viens d’exposer, contre une rédaction inspiré par des principes que je partage entièrement, et je garde encore l’espoir qu’il sera possible d’arriver à un vote unanime grâce à une rédaction qui 19 20 21

Loc. cit. Ibid. Ibid., p. 5.

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Chapter 14 laisserait de coté les détails techniques de construction, en affirmant les principes sur lesquelles nous sommes tous d’accord, – les principes énoncés dans la Convention de St. Pétersbourg – c’est-à-dire l’interdiction de l’emploi de balles dont l’effet aggraverait inutilement les souffrances des hommes mis hors de combat, ou rendrait leur mort inévitable.

An attempt to arrive at such a generally acceptable text was made in the plenary Conference by the main speaker against the proposal as it emerged from the Commission, the American Captain Crozier. He proposed the following more general and non-technical formula: L’emploi de balles qui infligent des blessures inutilement cruelles, telles que les balles explosibles, et en général toute espèce de balles qui dépasse la limite nécessaire pour mettre un homme immédiatement hors de combat, devrait être interdit.

Captain Crozier’s proposal was, however, never voted upon as the Conference decided on procedural grounds to give precedence to the proposal as accepted in Commission I. This proposal was then adopted with two votes against (Great Britain and the United States) and one abstention (Portugal). So much for the positive results of the Conference. For the rest, neither the proposals relating to the prevention of further technical improvements of weapons (discussed notably with respect to rifles) nor those designed to prevent the introduction of bigger guns or more powerful explosive charges, nor again the proposal to prohibit or limit the use of certain existing, extremely powerful high-explosive shells could muster sufficient support to be adopted by the Conference. The proposal relating to more powerful explosive shells is of particular interest to the present discussion of “military necessity” versus “requirements of humanity” in the choice of weapons. The Russian technical delegate, Colonel Gilinsky, formulated his suggestion as follows: … la Russie propose de ne pas employer pour l’artillerie de campagne des obus brisants ou à fougasses, et de se limiter aux explosifs existants sans recourir aux explosifs formidables qui sont employés pour les sièges.

The delegate did not indicate any particular reasons in support of his suggestion. It may be noted that it differed in one crucial respect from the prohibition achieved at St. Petersburg: while in 1868 a specific munition had been completely 22 23 24

Ibid., p. 56. Ibid., p. 61. Ibid., p. 48.

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banned from use, even where such use might be militarily advantageous, the proposal of 1899 merely aimed at restricting the use of specified artillery shells to sieges, where they were of proven military utility – and this without any noticeable concern for the fate of those human beings, combatants and civilians alike, who would be the victims of such use. Regrettably, the Russian proposal was hardly discussed at all. It therefore remains unknown on what grounds ten delegations expressed themselves in favour of the proposal and eleven against. It seems possible on the basis of the above survey to arrive at a somewhat more precise conclusion regarding the extent to which the deliberations and decisions of the Hague Peace Conference of 1899 stood under the influence of the principles proclaimed in 1868 by its predecessor, the International Military Commission assembled at St. Petersburg. The first conclusion is that these principles were in effect invoked by the delegates – and this not merely in a rhetorical sense – as the grounds underlying their decisions to prohibit for five years the use of air-dropped munitions and altogether to forgo the use of gas projectiles and dum-dum bullets. It should be noted, however, that positive results were few in number and constituted a small minority among the long series of proposals and suggestions submitted to the Conference: all the other ones were rejected after more or less prolonged debate. A further conclusion is therefore that in the great majority of cases the “requirements of humanity” did not by a long way carry enough weight to counterbalance the argument of “military necessity”. Nor is this conclusion new: it was already drawn at the time of the Conference by the American delegate, Captain Crozier. Speaking in the First Sub-Commission of Commission I to the question of the prohibition of dum-dum bullets, he summed up the spirit of the debate in the following terms: L’esprit général des propositions qui ont reçu l’accueil favorable de la SousCommission est un esprit de tolérance à l’égard des méthodes tendant à augmenter l’efficacité des moyens de faire la guerre et un esprit de restriction à l’égard des méthodes qui, sans être nécessaires du point de vue de l’efficacité, ont semblé inutilement cruelles. On a décidé de n’imposer aucune limite aux perfectionnements de l’artillerie, des poudres de chargement, des matières explosives, des fusils, tout en prohibant l’usage des balles explosibles ou dilatables, la projection de matières explosives du haut des ballons ou par des moyens analogues. Si l’on examine ces décisions, il semble que, lorsqu’on n’a pas imposé de restriction, c’est l’efficacité qu’on a voulu sauvegarder au risque même d’augmenter les souffrances, si cela était indispensable.

25 26

Ibid., pp. 48-49. Ibid., p. 57.

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With this we leave the Conference of 1899 and, passing over in silence such important events as the Conference on the Trade in Arms and the League of Nations Conference for the Reduction and Limitation of Armaments, we turn next to modern times, first, to 1966. In this year, nearly a century after the Declaration of St. Petersburg, Jean Pictet published a study entitled Les principes du Droit international humanitaire. That the central idea of the Declaration ranks high in Pictet’s system of humanitarian principles is evident from a reading of what he premises as the most fundamental principle of all humanitarian law, both of peace and war: Le respect de la personne humaine et son épanouissement seront assurés dans toute la mesure compatible avec l’ordre public et, en temps de guerre, avec les exigences militaires.

From this most fundamental principle of general humanitarian law he derives the principle of the law of war: Les belligérants ne causeront pas à leur adversaire des maux hors de proportion avec le but de la guerre, qui est de détruire ou d’affaiblir la puissance militaire de l’ennemi.

In elucidating this “principle of the law of war” Pictet enters into the question by what means the human resources of the enemy can be overcome: they can be killed, wounded or captured. As far as military efficiency is concerned, these means are equally useful as they all lead to the elimination of the adversary. On the humanitarian plane, however, an altogether different line of reasoning applies: La mort apparaît comme le mal suprême et irréparable. Et il y a de maints degrés dans la détresse du captif. L’humanité exige donc que l’on préfère la capture à la blessure, la blessure à la mort; que l’on épargne autant que possible les 27

28

29 30 31 32

This Conference, held in 1925 in Geneva under the auspices of the League of Nations, resulted in the conclusion of the Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. For text of the Protocol, see Schindler & Toman, op. cit. note 2, p. 109. The Conference was held in Geneva from 1932 to 1934. It discussed, among other things, “the selection of certain classes or descriptions of weapons the possession or use of which should be absolutely prohibited to all States or internationalised by means of a general Convention”; Records of the Conference, Series B, Vol. I, p. 113. Published by the ICRC; the study had earlier appeared in the Revue Internationale de la Croix-Rouge of the same year. Ibid., p. 25. Ibid., p. 28. Ibid., p. 29.

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non-combattants, que l’on blesse de la façon la moins grave – afin que le blessé soit opérable, puisse guérir – et de la façon la moins douloureuse; que la captivité soit aussi supportable que possible.

Is all of this pure idealism? Pictet answers this unspoken question in the negative when he continues: Les chefs militaires peuvent comprendre ce langage – et l’ont souvent compris – puisqu’on ne leur demande pas de renoncer à accomplir leur devoir de soldats et de patriotes. Ils peuvent atteindre le même résultat en infligeant des souffrances moindres. Une fois rendu inoffensif par sa blessure ou sa capture, l’ennemi ne joue plus de rôle dans le déroulement des opérations et le sort final de la lutte. La prolongation de ses maux, par manque de soins ou par mauvais traitement, même du point de vue le plus réaliste, est inutile.

Some years after he had committed these ideas to paper, an unsought opportunity presented itself to present them in another forum. The occasion was the Conference of Government Experts on the Use of Certain Conventional Weapons, held at Lucerne, Switzerland, from 24 September to 18 October 1974. Pictet chaired the Conference, which had been convened by the International Committee of the Red Cross (and with the present author as its main rapporteur). Although Pictet did not on the whole consider himself enough of an expert on the subject-matter to take any regular part in the discussions on the often highly technical questions relating to the use of conventional weapons, he did make an active contribution to the debate on “legal criteria”, which was held at an early stage of the Conference. In this debate, an interesting discussion arose over the precise meaning of the phrase “unnecessary suffering” as used in Article 23(e) of the Hague Regulations. The Report notes “widespread agreement among the experts” that this notion: involved some sort of equation between, on the one hand, the degree of injury or suffering inflicted (the humanitarian aspect) and, on the other, the degree of necessity underlying the choice of a particular weapon (the military aspect). It was also widely agreed that the equation would often be a particularly difficult one, as neither side of the equation could easily be reduced to precise

33 34

35

Loc. cit. – Pictet reiterated these ideas some years later in his book Le Droit humanitaire et la Protection des Victimes de la Guerre (1973). The Report of the Conference was published by the ICRC in 1975; see also, F. Kalshoven, “The Conference of Government Experts on the Use of Certain Conventional Weapons, Lucerne, 24 September-18 October 1974”, 6 NYIL (1975), pp. 77-102. Report, p. 9.

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What was to be understood in this context by military necessity? Opinion appeared to be divided on this score. There were, first, those experts according to whom: the element of military necessity consisted solely in the capacity of a weapon to put an enemy hors de combat, this in conformity with the preamble to the St. Petersburg Declaration of 1868…

The Report then introduces one expert who: elaborating this idea, felt that the subjective element it contained could be reduced, e.g. by a formulation which would require that, if two or more weapons would be available which would offer equal capacity to overcome (rather than “disable”) an adversary, the weapon which could be expected to inflict the least injury ought to be employed.

Needless to say, this solitary expert was Jean Pictet, who had grasped the opportunity to press his idea of minimizing human suffering in war as a legal requirement. But this time his views did not remain unchallenged. First, the very idea was opposed that military necessity as an element in the choice of weapons could be reduced to the sole aspect of their capacity to disable enemy combatants. Other requirements had to be taken into account, such as: the destruction or neutralization of enemy materiel, restriction of movement, interdiction of lines of communication, weakening of resources and, last but not least, enhancement of the security of friendly forces.

And even if one were to take into account nothing but the aspect of a weapon’s capacity to disable enemy combatants, some experts noted that: whereas the ideal solution might perhaps be that the soldier be equipped with a range of weapons from which he could select the one that would, in the concrete situation, put his enemy out of action with the least possible injury, this solution was impracticable and that, hence, even much graver injury than the minimum strictly required in a given situation could not always be avoided. 36 37 38 39

Loc. cit. Ibid. Ibid. Ibid.

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It was in the course of these latter remarks that some of the “some experts” jestingly compared the “ideal but impracticable” solution with the situation of the golf player, who indeed cannot pursue his game without a whole range of golf clubs, each of them specifically designed to meet a particular difficulty. They could also have cited the answer given in 1899 by Mr. Raffalovich to Sir John Ardagh when the latter had pleaded for the right to use dum-dum bullets against savages: to equip a soldier with two types of bullet, one against savages and the other against a civilized adversary, would complicate armaments. In 1899, the delegates had ultimately chosen for the bullet which was stated to inflict the least harm: would history repeat itself in this respect as well? Bullets were indeed on the agenda of the Conference of 1974, and so were scores of other anti-personnel weapons. As for bullets, the introduction of rifle ammunition with a substantially smaller calibre than the 7.62 mm rounds in common use so far, had led to the charge that the new small-calibre projectiles were apt to cause very grave wounds, resembling those caused by dum-dum bullets. The charge gave rise to hot debate among experts, a debate which continued until well after the Conference. For present purposes, it may suffice to note that the lawyers at the Conference, confronted with the conflicting views of the military and medical experts, hesitated to arrive at any conclusions on the question of whether the small-calibre projectiles should be deemed to cause unnecessary suffering. All the experts recognized the high military value of the new rifles; but what about the element of suffering: was it really significantly graver than the suffering caused by 7.62 mm rounds? And if so in some cases, was it true in all cases: did it depend on the calibre alone, or were other factors involved as well, such as rifle and bullet design? The discussion terminated on the note, accepted by all, that “further study and research were required to arrive at more definite conclusions.” The “further study and research” were indeed carried on in subsequent years. They did not in the end result in a prohibition on the use of the smaller rounds; quite on the contrary, small-calibre rifles are ever more widely accepted as the combatant’s basic equipment. Yet, “study and research” were certainly not in vain: as experiments appeared to show that design may be a more important factor than calibre, weapon producers were soon looking for a design which, while maintaining the characteristics required from a point of view of military effectiveness, is not open to the objection that it is “of a nature to cause unnecessary suffering.” Another type of weapon giving rise to heated debate in the 1974 Weapons Conference was what at the time often was popularly referred to as “fragmentation weapons”. The specific type of fragmentation weapon causing particular 40 41

Report, Chapter IV; the quoted words are on p. 47. On this question, see M. Lumsden, “The prohibition of inhumane weapons: new small arms ammunition”, being Chapter 15 of World Armaments and Disarmament, SIPRI Yearbook 1982.

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concern was the fairly recently introduced controlled-fragmentation anti-personnel munitions, whether delivered singly or in clusters. Two charges were levelled against these munitions: they acted indiscriminately, and they caused multiple wounds and, hence, unnecessary suffering. It was of course an undisputed fact that the fragments of an exploding “fragmentation weapon”, depending on its characteristics, spread over a more or less wide area of terrain. As a logical consequence, these fragments were apt to hit whomever or whatever was in that area, and the chances were, moreover, that more than one fragment would hit a single “target” (be it human being or object). Was all of this sufficient ground for a prohibition of the new munitions: were they, in effect, so very different from the earlier high-explosive artillery shells and aircraft bombs, the ones discussed in 1899, for example? Some experts were of this opinion; as one of them had it, use of the munitions at issue entailed “an extremely high degree of suffering, long and difficult treatment, and a high mortality rate, all of which constituted unnecessary suffering.” In this expert’s opinion, “the use of the weapons under consideration was already prohibited by virtue of the Declaration of St. Petersburg, Article 23(e) of the Hague Regulations on Land Warfare, and certain military regulations …” But he failed to convince all his colleagues. In the view of some other experts: even the newly developed weapons in this category did not cause more suffering, nor were more indiscriminate, than the weapons whose place they had taken or those that would eventually replace them. As for indiscriminateness, this would depend on the use to which the weapons were put rather than on their nature. As regards suffering, the evidence seemed to show that the degree of suffering inflicted by the modern cluster bombs or by fléchettes was often less than that resulting from the use of the predecessors of these weapons.

And again: In the opinion of some experts, the data presented and information supplied showed that, if the modern fragmentation weapons were prohibited and conventional ones were used instead, the results might prove to be hardly an improvement from a humanitarian aspect, as a much higher proportion of severe and life-threatening wounds was likely to occur.

Like the new rifles, also the new controlled-fragmentation munitions therefore failed to be prohibited from use as a class when six years later the matter finally came up for decision in the Conference which the United Nations had 42 43 44

Report, Chapter V; the quotation is from p. 61. Ibid. Ibid.

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convened for that purpose. It should be underscored, however, that the validity of the humanitarian principles involved was never questioned by anyone. And it should be added that in the end, one specific type of fragmentation weapon was struck by a prohibition: according to Protocol I annexed to the UN Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects: It is prohibited to use any weapon the primary effect of which is to injure by fragments which in the human body escape detection by X-rays.

This prohibition represents a clear case of application of the principle of unnecessary suffering. The fragments escaping detection would doubtless have the effect, in the terms of the St. Petersburg Declaration, of “uselessly aggravating the sufferings of disabled men”, this while the military utility of the weapons in question was estimated to be slight at best – that is, if the weapons existed at all: to some, they still were what Captain Schéine had described in 1899 as “une nouvelle sorte d’explosifs, dont l’invention paraît possible.” While the Protocol on Non-Detectable Fragments amounts to a very modest result indeed, some more significant results were scored with respect to two classes of weapon: mines and booby-traps, and incendiary weapons (Protocols II and III annexed to the UN Convention, respectively). One thing stands out with particular clarity from a reading of these Protocols: their main thrust is unmistakably towards protection of the civilian population. With respect to mines and boobytraps, this trend had already become apparent at the Conference of 1974, where the argument of unnecessary suffering was not even raised in the debate and all attention had been focussed on the concepts of indiscrimination and perfidy. It should be noted that the Mines Protocol actually provides some language which aims to protect combatants as well as civilians. This is notably the case with Article 6, relating to the use of certain booby-traps. While the prohibitions spelled out in this Article mostly reflect the ideas of indiscrimination and perfidy, paragraph 2 expressly prohibits “in all circumstances to use any booby-trap which is designed to cause superfluous injury or unnecessary suffering.”

45

46 47 48

UN Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Geneva, 1979-1980. UN doc. A/CONF.95/15 provides the Final Report of the Conference to the General Assembly. For text of the Convention and annexed Protocols, see also A. Roberts and R. Guelff, Documents on the Laws of War (1982) pp. 467 et seq. Report, Chapter VI: Delayed-Action and Treacherous Weapons. While this text ostensibly does no more than repeating the rule laid down in Art. 35(2) of the 1977 Additional Protocol I, it implicitly condemns the use, sometimes made e.g. in the Vietnam War, of hidden pitfalls with bamboo spikes at the bottom.

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Incendiary weapons, finally, gave rise to what probably was the bitterest debate of all. It had been apparent already at the Conference of 1974 that with respect to this category of weapon the experts were sharply divided on all important points. Admittedly, burn wounds were apt to entail exceedingly grave suffering; but was it not the case that certain incendiary weapons were indispensable against particular military objectives such as tanks, and was it not possible for combatants in the open to avoid the effects, say, of napalm, either by wearing protective clothing or by escaping from the scene of the fire? As for the element of indiscrimination, was it not a matter of particular forms of use of incendiary weapons rather than of their use per se which threatened the civilian population; and were fires not started by entirely different causes as well? While it would seem possible for rational men to arrive at an agreed answer to most of these questions, the situation was hopelessly exacerbated by the fact that at the UN Conference, the participants in the debate were from the outset entrenched in diametrically opposed positions. One extreme was the ardent hope that a categorical ban on the use of all incendiary weapons could be achieved; and the other was the firm conviction that no specific limitations whatever on the use of incendiary weapons could reasonably be demanded. Small wonder, then, that emotions ran high in the debate. The outcome, as found in the Incendiary Weapons Protocol, is very close to the latter position: no protection for combatants is provided, and the only clear concession with respect to the protection of the civilian population is found in Article 2(2): It is prohibited in all circumstances to make any military objective located within a concentration of civilians the object of attacks by air-delivered incendiary weapons.

In conclusion, the question may be asked what became of the principles of St. Petersburg, and in particular of Jean Pictet’s view of these principles. As to the first part of this question, it appears safe to conclude that, generally speaking, all the discussions in subsequent years have tended to reaffirm the validity of the principles enunciated in 1868. It is equally obvious that application of the principles to concrete weapons often proved excruciatingly difficult and only in the rarest of cases resulted in a categorical prohibition, or even any noticeable restriction, of the use of a specific (category of ) conventional weapon. This is to say that considerations of military efficacy of given weapons have continued to play an all-important role. In this respect, the conclusion drawn in 1899 by Captain Crozier still holds true:

49 50

For the debate in the Conference of 1974, see Report, Chapter III. The same conclusion is drawn by W. V. O’Brien, The Conduct of Just and Limited War (1981).

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Si l’on examine ces décisions, il semble que, lorsqu’on n’a pas imposé de restriction, c’est l’efficacité qu’on a voulu sauvegarder au risque même d’augmenter les souffrances, si cela était indispensable.

What about the second part of our question? It seems fairly evident that Jean Pictet’s statement, taken literally, was untenable. A combatant simply cannot be equipped with a wide array of weapons for all kinds of situations, as the golf player is with his bag of golf clubs. In certain situations, therefore, the individual combatant will not be able to avoid inflicting graver suffering than would have been strictly necessary to put his enemy hors de combat; in other situations, for that matter, the weapons at his disposal will be insufficient to achieve that legitimate purpose. But taken less literally, Pictet’s argument appears to carry full weight; that is, if it is understood as addressed to the authorities who decide on the armament of the armed forces and, even, those military commanders who actually have a choice of weapons at their disposal. Considerations of military efficacy will again tend to rank high in the deliberations of these authorities; at the same time, they will fail in their duty if they totally lose sight of the humanitarian requirement of minimization of human suffering.

Chapter 15 Conventional Weaponry: The Law from St. Petersburg to Lucerne and Beyond*

In bringing before you the subject of tonight’s lecture, I do so with the painful feeling that it is a very dry subject – indeed, one which may be instructive, but cannot be made amusing; I can only, therefore, express my pleasure and surprise that the uninviting nature of my title should not have prevented more from attending this evening.

This is a quotation from the published records of an earlier meeting, comparable to the present one. They are the opening phrases of a paper on “Explosive Bullets and Their Application to Military purposes”, read by a Major G.V. Fosbery, V.C. H.M. Bengal Staff Corps, in a meeting of the Royal United Services Institution, held in London, under the chairmanship of Rear-Admiral Sir Frederick W.E. Nicolson, in the evening of Monday, 20 January 1868. If nothing else, this proves that at least on one earlier occasion a group of professional people met in this country to discuss an aspect of the use of conventional weapons. The date of that previous occasion, January 1868, is significant. In November of that year an International Military Commission assembled at St. Petersburg “in order to examine into the expediency of forbidding the use of certain projectiles in times of war between civilised nations.” And that Commission “having by common agreement fixed the technical limits at which the necessities of war ought to yield to the requirements of humanity”, drew up the text of a Declaration by which “the Contracting Parties engage[d] mutually to renounce, in case of war among themselves, the employment by their military or naval troops of any projectile of a weight below 400 grammes, which is either explosive or charged with fulminating or inflammable substances.” This so-called St. Petersburg Declaration was signed on 11 December 1868 by the representatives of seventeen States, and thus became the first conventional undertaking to renounce the use in war of a specific category of weapon.

*

1

Paper given at a meeting of the Discussion Group of the Laws of Armed Conflict of the British Institute of International and Comparative Law, 16 March 1985, and published in Michael A. Meyer (ed.), Armed Conflict and the New Law (1989) pp. 251270. 12 Journal of the Royal United Services Institution (1879) pp. 15-27.

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Major Fosbery’s explosive bullets obviously fell within this category. It may therefore be of some interest to see how he dealt with the matter in January 1868; was he already then predicting a ban on their use? To be sure, he expressed some concern at “hear[ing] the use of rifle-shell in war condemned as cruel, cowardly, or useless.” For his part, however, he “trust[ed] that the rifle-shell may receive, at all events, thoughtful consideration, as a candidate for the office of peacemaker to begin with, and as having a tendency to shorten any war once commenced, where its use is properly persevered in.” More specifically, he attributed to the rifleshell which he had himself perfected and tested in actual war-time conditions in India, a number of beneficial effects: it would “explode gunpowder enclosed in stout cases, such as artillery limber-boxes at extreme range and when an ordinary bullet would in no ways affect it.” It was “a ready means of estimating distances … more especially amongst mountains.” And, last not least, it had a profound effect on enemy morale. But was it not true that the explosive bullet was a cruel weapon? In order to deal with this argument Major Fosbery introduced a character who took this position and who, he said: takes to himself credit, and honestly enough, I doubt not, for humanity, and a kind regard for the comfort of his fellow-creatures, even when arrayed in arms against him. Yet he will take a scientific pride in the acknowledged weapons and usages of war, and use them with a good conscience to the best effects.… On land he disembowels [his enemy] with rockets, buries in his path the selfacting fougass; tears his body with the angular fragments of segment-shell; plies him with grape and canister, old iron, and broken bottles; undermines him; fills up his wells, and destroys his habitations and supplies, and makes him to die of hunger, of thirst, and exposure, or linger, it may be, for weeks, from the fearful wounds of the bayonet, the sabre, or the Snider-Enfield bullet, the latter, by the bye, almost equalling in their effects on the body any produced by rifle-shell, as may be seen by the fragments into which such a bullet divides when fired into water. All this, moreover, with the best possible intentions and most serene good faith. But let me ask you, is this really humanity? Are any of the deaths to which the greater number of the killed in war are put, strictly speaking humane? or, if they are not, what is this humanity of which so much is made? Is it indeed a branch of that quality which leads us to clothe the naked and feed the hungry, only developed in another direction? or is it not rather a 2 3 4 5 6 7

p. 17. p. 27. p. 17. p. 21. pp. 2-27. p. 25.

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term of variable quantity, applied to homicidal cruelty, and so adjusted as to be always just one step behind the last military discovery of the day?

For Major Fosbery, these were obviously rhetorical questions. To his mind, not humanity lay at the root of this argument of cruelty; not “the desire to spare the infantry and cavalry soldier … one atom of suffering, not one pang in death (for the shell kills much more instantaneously and more mercifully than the bullet)”: rather, the desire was to spare him: that unpleasant feeling which attaches to any species of death which men have not been accustomed to look into the face – that dread of the unknown – which makes a child fear to enter a dark passage without a light – which keeps country people from a haunted lane – the bravest sailor from a harbour known to contain torpedoes – or makes gallant troops shaky on ground which is supposed to be mined. That feeling which is – say what you will – at least akin to the sentiment which more than all the bloodshed in the world has lost its battles, and which it should be the object of every improvement in war material to produce, whether by its known or by its supposed effects – I mean fear.

Thus, rifle-shell, far from deserving to be banned, ought to be accepted everywhere and so should further improvements in war material, so as to continue to inspire into the adversary that beneficial dread of meeting a death he had not been accustomed to look into the face. “No one” – Major Fosbery felt – “will face a rapid and well sustained infantry fire of shell, as all who have seen them much used, are agreed, at all events until accustomed to them; and this takes time. But if they will not face them, then life is saved rather than destroyed. In fact the old argument holds good for each fresh step in advance; the more terrible the recognised engines of destruction, the greater will be the prospect of maintaining peace; or should war break out the shorter of necessity will be its duration.” So much for the optimistic views of Major Fosbery; views which, needless to say, were not shared by all his contemporaries, witness the adoption in that same year of the Petersburg Declaration. Yet, it did not seem to me a waste of your time to deal at some length with Major Fosbery’s ideas: January 1868 may be a long time ago, but this is a far cry from saying that no one would be thinking today along similar lines. There is another interesting aspect to his lecture. It may have been noticed that he referred at one place to bullets being fired into water. This goes to show that even in his days, experiments with rifle ammunition were being carried out, and awareness existed that projectiles of different design could have different effects. It is simply not true, as has sometimes been suggested, that this aware8 9

p. 26. p. 27.

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ness arose only recently, as a consequence of the introduction of the modern rifle projectiles with a calibre below 7.62 mm. 1 The drafting of the 1981 Weapons Convention This brings us to present times. For, although many an interesting debate took place in the period following after the adoption of the St. Petersburg Declaration, and in particular in the course of the negotiations at the Hague Peace Conference of 1899 which preceded the adoption of the Declaration Concerning Expanding Bullets (the so-called dum-dum bullets), it is not my intention to pursue this historical line any further. Rather, attention will be focused on the proceedings which ultimately resulted in the adoption, on 10 October 1980, of the UN Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects. To be sure, the records of those proceedings could easily be made to fill more than one evening. Therefore, to quote an often dramatically misused expression: I shall be brief, and concentrate on some highlights, especially as far as the earlier history is concerned. Another preliminary remark is that my focus will be more on Geneva than on New York: more, in other words, on the work of the ICRC than on that of the United Nations. 1.1 The Role of the ICRC The interest of the ICRC in the matter of weapons stemmed not so much from any particular desire to get itself involved in questions of weapons technology and armaments, as from its concern to see the civilian population protected from the dangers of indiscriminate warfare. Aerial bombardment and, since 1945, the “atomic bomb” were obvious objects of its concern; but as early as 1956, it mentioned “incendiary agents” along with chemical, bacteriological and radioactive ones as devices which either by their nature or in given circumstances could have uncontrollable effects. In 1967, in a Memorandum to all Governments on the protection of civilian populations against the dangers of indiscriminate warfare, it raised the question whether “such new weapons as napalm and high velocity rockets” should not be regarded as “weapons inflicting unnecessary suffering”. And in 1969, it invited a meeting of experts to give their opinion, inter alia, on 10

11

As for the negotiating history of the 1899 Declaration on dum-dum bullets, reference may be made to the article entitled “The Soldier and his Golf Clubs”, which the present author contributed to Etudes et essays sur le droit international humanitaire et sur les principes de la Croix-Rouge, published in honour of Jean Pictet (1984) pp. 369385. The text of the Convention may be found, inter alia, in Roberts & Guelff (eds.), Documents on the Law of War (1982) p. 467 et seq.

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the questions of napalm, “high speed barbed missiles” (i.e. fléchettes) and “fragmentation bombs”. Here, the influence of the information concerning the conduct of war in Vietnam becomes clearly discernible. It is of interest to note that the experts the ICRC had brought together were hopelessly divided on the question of whether the use of napalm was permissible or not and whether a prohibition on its use would be desirable or feasible (the report of the meeting is silent on the other two types of weapon). Equally interesting was the advice offered by a number of these experts, to the effect that the task of the Red Cross in this sphere was not so much to bring about the prohibition of specified weapons but, rather, constantly to remind all those concerned of the basic principles governing their use. This piece of advice actually was in conformity with feelings widespread in Red Cross circles at the time on the desirability (or, rather, undesirability) of Red Cross involvement in questions of weaponry. But the ICRC did not give in: one of the volumes of documentation it submitted to the Conference of Government Experts, convened for May-June 1971, raised the question whether weapons such as “fragmentation bombs”, “certain ultra rapid ‘darts’” (i.e. fléchettes), certain new types of rifle ammunition, “mines filled with glass splinters or rusted nails” and indeed the entire range of so called “anti-personnel” weapons should not be made the subject of a critical examination. Significantly, the document containing these suggestions was the one devoted to guerrilla warfare – the Vietnam war, in other words. In another document, dealing with “Rules relative to behaviour of combatants”, the ICRC merely suggested the reaffirmation of the basic principle, embodied already in Article 23(2) of the Hague Regulations of 1899/1907, prohibiting the employment of “arms, projectiles or material calculated to cause unnecessary suffering”, and it did not make any proposals for more specific prohibitions or restrictions on use of particular weapons. Some such proposals were submitted by participants at the Conference of Government Experts, both in the course of its first (1971) session and in the second session, held in 1972. With respect to these proposals, it may suffice to note that while in 1971 their main thrust had been the protection of the civilian population, in 1972 a wider goal was sought as far as incendiary weapons were concerned: while the 1971 proposal had been for a prohibition on “napalm bombs and other incendiary weapons … for use in circumstances where they may affect the civilian population”, the restrictive closing phrase did no longer figure in the proposal for 1972. This broadening of its scope at the same time reduced the number of its proponents: while the Dutch experts had supported the earlier version, they withdrew their support in 1972. Thus, it became even clearer than 12

Much of what follows is based on this author’s “The Conference of Government Experts on the Use of Certain Conventional Weapons, Lucerne, 24 September - 18 October 1974”, in 6 NYIL (1975) pp. 77-102.

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before that the experts, and the governments behind them, were sharply divided over the issue of restrictions on the use of incendiary weapons. By this time, the ICRC had completely abandoned any idea of making its own suggestions regarding prohibitions or restrictions on the use of specified conventional weapons. For one thing, had it followed its heart, it would simply have proposed an outright ban on the use of an assortment of weapons, with incendiary weapons among them, that it had come to regard as unnecessarily cruel. But it realised only too well that this way of the heart was closed. This being so, it was reluctant to get itself entangled in discussions about the relative merits and demerits of this, that or the other weapon, with the political overtones such discussions would inevitably have. After all, the war in Vietnam was not over yet, and charges of unlawful conduct of the war continued to fill the air. At the same time, the ICRC was loath to see the subject go to the United Nations for fear that it would there become totally politicised. The question was therefore what course to steer. 1.2 The role of Government Experts In resolving this problem, it was helped by outside factors. At the first, 1971, session of the Conference of Government Experts, the suggestion had already been made that the Conference should take up the study of all weapons which were not at the time the subject of discussions in other forums, such as the United Nations or the then Conference of the Committee on Disarmament. Neither this nor the 1972 session did in fact embark on such a wide-ranging debate. But a number of non-aligned countries, with Sweden very prominent among them, continued to repeat their demands for such an expert study. They voiced these demands both within and outside the United Nations. One memorable occasion was the XXIInd International Conference of the Red Cross, held at Teheran in November 1973. Virtually simultaneously with the UN General Assembly, that Conference adopted a resolution (No. XIV) requesting the ICRC to convene a conference of government experts to study the question of conventional weapons that might be deemed to cause unnecessary suffering or have indiscriminate effects. The resolution was the outcome of negotiations between two key figures representing opposing tendencies: Mr. George Aldrich of the U.S. Department of State and Dr. Hans Blix of the Swedish Ministry for Foreign Affairs, with the present author acting as mediator. The adoption of this resolution, with the support even of the United States which up to that moment had shown itself unwilling to take part in such an exercise, cleared the way for the convening of the meeting of government experts which the non-aligned had so insistently demanded. After further careful and at times difficult preparations, the ICRC duly convened the Conference of Government Experts on the Use of Certain Conventional Weapons at Lucerne for 24 September - 18 October, 1974. It will be noticed that the qualifying phrase

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of Resolution XIV, that the weapons to be studied “might be deemed to cause unnecessary suffering or have indiscriminate effects”, did not figure in the title of the Conference. For one thing, this reflected the unwillingness of some governments to concede beforehand that part of their weaponry might perhaps be open to some criticism from a legal point of view. For another, the change was more than cosmetic in that for all practical purposes it cleared the way for a study of the entire range of conventional weapons. 2 The Lucerne Conference 1974 The Conference was favoured by a broad attendance: the list of participants included experts from some 50 countries, from several national liberation movements, from the United Nations and the World Health Organisation, and from some non-governmental organisations including SIPRI. Among the experts were officers with wartime experience, ballistics and technological experts, military and civilian surgeons and other medical doctors, lawyers of all kinds, and diplomats, some of whom had not had to travel any further than from Geneva (and whose expertise in the field of conventional weaponry was correspondingly limited). The Conference was chaired by Dr. Jean Pictet of the ICRC, and I had the privilege of serving as its main rapporteur. What I have to say about the Conference is based on its report as well as on information I collected in the latter capacity. The Conference had an ambitious agenda, with as its first item a discussion of legal criteria. This was followed by a study of incendiary weapons, small-calibre projectiles, blast and fragmentation weapons, delayed action and treacherous weapons, and future weapons. A debate on the follow-up to be given to the work of the Conference, and of course a discussion of the report would conclude the proceedings. Notwithstanding this heavy workload, and despite its heterogeneous composition, the Conference did not break up into working groups; the entire recorded debate took place in plenary sessions. The only exception was an informal working group on the definition and classification of incendiary weapons. Its informal character did not prevent this working group from reporting back to the Conference on the outcome of its deliberations and its report was annexed to the Conference report. 13

ICRC, Conference of Government Experts on the Use of Certain Conventional Weapons (Lucerne, 24.9-18.10.1974) – Report (1975). An abbreviated version of an oral report on the Conference, read out by the present author at the outset of the second session of the Ad Hoc Commission, was published in the summary records of that Commission’s 8th meeting of 5 Feb. 1975 (CDDH/IV/SR.8, paras. 8-33), Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974-1977), Vol. XVI, pp. 68-73.

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The opening debate on legal criteria profited greatly by a paper on “legal criteria for the prohibition or restriction of use of categories of conventional weapons” by Colonel (as he then was) Sir David Hughes-Morgan. It may be of interest to note some of the observations he made in that paper. By way of introduction, he drew a distinction between the older type of ban on “the use of a specific weapon or projectile, necessarily involving a description of the weapon or projectile concerned”, and prohibitions “drafted with reference to the effects resulting from use” of weapons. With respect to the former type of specific ban he wrote, repeating a warning voiced earlier by Richard Baxter, that the more specific the prohibition, the greater the possibility of lawful circumvention of the rule. A detailed prohibition on a specific weapon which is militarily effective may well challenge technologists to devise a weapon having the same effect but whose characteristics are not caught by the prohibition.

A prohibition drafted with reference to effects, on the other hand, “is not only valid as a prohibition in itself, but is likely to contain the criteria by which future prohibitions on specific weapons ought to be judged.” The first such prohibition to come to mind is, of course, that on weapons calculated to cause unnecessary suffering. How valuable a standard was this in practice? Sir David had the following to say about this: There are two main difficulties in applying this rule to specific weapons. First, it may be necessary – particularly at short range – to inflict a severe wound to ensure that a man is placed “hors de combat”, for a comparatively minor injury may enable him to continue fighting. Secondly, the requirements of the military task to be performed have to be taken into account. For example, some of the powerful weapons designed for use against armoured fighting vehicles are likely to inflict severe injuries on the crew. But such weapons may be necessary to penetrate the armoured protection on such vehicles and it is a legitimate act of war to put fighting vehicles and their crew out of action. Similarly, a particular level of penetration is required for small arms to defeat body armour or steel helmets, and a weapon which did not do this would not be militarily effective: its effect on an unprotected man, however, would be severe. Ideally, a military commander should have available to him a range of weapons such as to be able to meet exactly the degree of force needed in any particular situation. For obvious reasons, this is impossible:

14 15

As with other documents distributed at the Conference, Sir David’s paper was merely mentioned in a list included as Annex 4 to the Report. Richard R. Baxter, “Criteria for the Prohibition of Weapons in International Law”, in Horst Ehmke et al. (eds.), Festschrift für Ulrich Scheuner (1973) p. 51.

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a soldier can carry only one rifle, for example, and the varieties of artillery projectiles are necessarily limited.

His conclusion was that a weapon could not “… be declared unlawful merely because it does on occasion cause severe suffering or injury.” As the correct criterion he saw one of proportionality, and “… in this regard a weapon which in practice is found inevitably to cause injury or suffering disproportionate to its military effectiveness would be held to contravene the prohibition.” Finally turning to “future generic prohibitions”, he considered it “desirable to define a standard of comparison by which it can be determined whether injury is caused unnecessarily.” At the same time, he doubted the possibility “to better that which is at present used, namely the degree of injury caused considered in proportion to the military effectiveness of the weapon in question.” Yet this standard was certainly not useless: … a prohibition so framed is of value in forbidding the use of any weapon which, while inflicting severe wounds, has no corresponding military significance. The difficult cases, in which the results of the proportionality equation are in dispute, can only be resolved by the agreement of states to prohibit the use of specific weapons. In so doing, they would necessarily take into account the criteria contained in the generic prohibition.

I have included these lengthy quotations from an unpublished paper because they provide an excellent introduction to the difficulties which the Conference experienced, both in its discussion of legal criteria and in the debate on specific weapons or categories of weapon. To demonstrate these problems I can do no better than quote from a statement by Dr. Hans Blix, still in the same debate on legal criteria. Referring in particular to Sir David’s comments on inevitable disproportion as a ground for prohibition of a weapon, he felt that “inevitable” was too rigid a term; and he was: also troubled by the use of the word “disproportionate” because it seems to imply that if a weapon is very effective from a military point of view, then the degree of suffering that would be acceptable would be proportionally high. However, the military effect that is legitimate is only that of putting a man out of combat, to disable him, and there should be put no premium on weapons which may go further than that. This is not to deny, of course, that the element of military utility will have to be weighed against the humanitarian aspects of the use of a weapon, or rather, the inhumane aspects of use of a weapon. That balancing evidently is a central task in determining whether the rule is applicable in a particular case.

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In other words, while he agreed with Sir David that proportionality was the applicable standard here, he shrunk back from accepting the consequences of its application in all cases. 2.1

Unnecessary Suffering

In discussing unnecessary suffering, a first question to arise was what had to be understood by the concept of suffering. On this question, there was an appreciable degree of consensus; “suffering” was generally considered to comprise such factors as mortality rate, the painfulness or severity of wounds, and the incidence of permanent damage or disfigurement. Opinion was more divided, however, when it came to an identification of the elements to be taken into account in assessing what suffering should be considered unnecessary. There were those experts who, like Dr. Blix, while conceding that an element of military necessity was involved here, maintained that this consisted solely in the capacity of a weapon to put an enemy hors de combat. Even then, the question would remain how much injury was required to disable an enemy soldier. According to the opposite view, military necessity as an element in the choice of weapons included such other factors as (to quote Mr. Ronald Bettauer from the United States): … the destruction or neutralization of military materie1, restriction of movement, interdiction of lines of communication and effects on morale, command and control, stamina and cohesion of opposing forces, effectiveness against particular targets, availability of alternative weapons, cost, and the security of the troops involved.

The debate on unnecessary suffering yields one further interesting detail. This arose in connection with the view, defended by Dr. Blix and others, that the sole legitimate function of a weapon was to put an enemy hors de combat. Dr. Pictet grasped this opportunity to confront the meeting with an idea of a somewhat philosophical order, that “if two or more weapons would be available which would offer equal capacity to overcome … an adversary, the weapon which could expected to inflict the least injury ought to be employed.” The idea had already been forestalled by Sir David in his paper, where he also had pointed out that it could not work in practice. The same objection was repeated in the debate. An attempt to do Dr. Pictet’s idea maximum justice while at the same time putting it in its proper perspective was undertaken by Mr. Frederick Blakeney, Head of the Australian delegation. While suggesting a formulation which closely followed the idea expressed by Dr. Pictet, he accompanied this with the comment that any such formulation:

16

Report of the Conference, p. 9: para. 25.

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obviously needs to be looked at in respect of the enemy as an individual, and as a group. There already seems a wide measure of agreement that as few as possible should be killed, no more than necessary should be wounded and those lightly rather than gravely. The total so disabled or overcome should not exceed the number necessary to ensure victory in given exchanges and the war overall.

I have dwelt at some length on this discussion about unnecessary suffering because it was of crucial importance to further discussions on specific categories of weapon. It also provides a clear example of the type of inconclusive debate which was characteristic of the Lucerne Conference. The debate on legal criteria did not yield any agreed formulations. It also was disappointing to those few experts who like my compatriot Major Gonsalves of the Dutch army legal services, had set their hopes even higher and aimed at identifying legal parameters of such accuracy that they could be applied almost automatically to any given weapon. For those who had entered the debate with more modest expectations, it could at least be said to have provided, in Dr. Blix’s words, a measure of “knowledge of each other’s philosophy for prohibitions or restrictions.” 2.2

Indiscriminateness

As concerns indiscriminateness, the discussion turned around the question whether the category of conventional weapons includes types of weapon which are inherently indiscriminate. The difference of opinion was predictable: while some experts thought that such weapons did indeed exist, other experts denied this. According to the latter experts, any conventional weapon could be used indiscriminately or with discrimination, so that the method of use rather than the weapon’s properties would be decisive in determining whether the requirement of discrimination had in effect been met. And a similar difference of opinion became apparent with respect to perfidy, with some experts advocating that this be given a separate place among the legal criteria and others denying that it would deserve such a separate place. 2.3 Dictates of the Public Conscience The last criterion brought up for discussion under the heading of “legal criteria” was the dictates of the public conscience. These are mentioned as one factor besides others in the well-known Martens clause in the preamble to the Hague Convention of 1899 respecting the Laws and Customs of War on Land. It is of course very much a debatable point what legal effect, if any, should be attributable 17

For a further discussion of the question, the reader may be referred to the paper contributed by the present author to the book in honour of Jean Pictet, supra, note 10.

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to utterances of public opinion. At Lucerne, there was a general readiness to acknowledge its importance. To some, it even constituted an independent legal criterion against which the legality of use of specified weapons could be tested. In the eyes of others, it represented a political rather than a legal factor: governments would be well advised to take the “dictates of the public conscience” into account in making up their mind about the deployment and use of modern conventional weapons. And indeed, in any not entirely closed society this certainly seems to be a sound piece of advice. 2.4 Incendiary Weapons The “dictates of the public conscience” have obviously played an important role in the discussions of recent years about the admissibility of use of incendiary weapons. At Lucerne, these were the first category of weapons to come up for discussion, and although it is not my intention to discuss each and every category of weapon, some remarks about incendiaries may nonetheless be useful. One key issue in the debate concerned the definition and classification of “incendiary weapons”. After all, there are many ways of starting a fire, and at times it may erupt as an involuntary side effect of the use of weapons. This question was taken up by the informal working group which I mentioned earlier, and the group was able to reach a consensus at least on the definition of “incendiary munitions”. It read as follows: For the purposes of this Conference, an incendiary munition has been considered to be any munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame and/or heat produced by a chemical reaction of a substance delivered on the target.

The group also recognised that there exist munitions which may have secondary or incidental incendiary effects but which do not fall within the quoted definition, and they gave examples: illuminants, tracers, smoke, signalling systems and fuel-air explosives. This was as far as the consensus went: the group had not been able to reach agreement on the classification of other munitions such as certain armour-piercing and anti-aircraft projectiles, which combine incendiary with other distinctive effects. In the meantime, the discussion in plenary had yielded a wealth of information about the use of incendiary weapons, their military characteristics and medical effects, and possible substitutes. In the final evaluation, the conflicting nature of much of this information led to radically opposite conclusions with respect to the admissibility of use of incendiary weapons. This division of opinion became apparent as much in the assessment of these weapons against the criteria of unnecessary suffering and indiscriminateness as in the views on their prohibition.

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Thus, according to one group of experts, incendiary weapons caused exceptionally grave wounds, were of limited military value and could easily be substituted by other weapons, and they could therefore be said to cause unnecessary suffering. These experts also regarded incendiary weapons as inherently indiscriminate. In contrast, while other experts did admit that burn wounds are probably the worst possible type of wound, these experts were not convinced that the use of incendiary weapons would in all cases result in an exceptionally high incidence of casualties, let alone of gravely wounded. These experts felt moreover that the military value of these weapons was far from negligible, and they feared that their substitution by other weapons might even result in an increased number of casualties and of severely wounded in particular. And as far as indiscriminateness was concerned, they once again expressed the view that this depended entirely on the method of use. One method in particular, however, the massive use of incendiary weapons against civilian population centres, found virtually unanimous condemnation. Views on the final evaluation of incendiary weapons were equally divided, with one group of experts advocating their outright prohibition and the other group holding that insufficient grounds for such a sweeping conclusion had been shown. One interesting detail in this debate concerned the possibility of attacks on military objectives located within population centres: while an expert from the first group pointed to the risk that incendiary weapons, when used in such attacks, might start fires spreading over a wide area outside the target, an expert from the other group drew attention to the responsibility of the authorities who should ensure that no vital military objectives be found within civilian population centres. The discussions which followed on other categories of weapon were of a similar nature. There might be differences in technical complication or in the level of emotion involved in the debate, but in each and every instance, once it came to evaluating the category of weapon concerned, the house was irreconcilably divided. This caused quite some frustration, especially among those experts who had come to Lucerne with the firm conviction that a number of conventional weapons deserved to be banned from use, and that their view would be shared by all – once everyone got to know the true facts. This sense of frustration was voiced, for instance, by Dr. Blix in his closing statement on small-calibre projectiles. The Swedish experts, he said, had found the discussion “most useful”; but still: We would have been even more appreciative of the debate if more of the statements had aimed at a constructive analysis rather than one that has very preponderantly been directed at throwing doubt at whatever data that have been presented and reaching the somewhat sterile conclusion that nothing is known about anything.

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When one looks back at the Conference of Lucerne, a first conclusion is that it constituted an important event in that so many countries, and most of the major ones among them, were represented by qualified experts. The experts, moreover, did not confine themselves to being physically present: they offered a wealth of information about a wide range of conventional weapons. In doing so, they did throw doubt on virtually every assertion which one group of experts and the governments which they represented, had previously regarded as incontrovertible truths, whether with regard to legal criteria or where the properties of weapons and their substitutes were concerned. It is perhaps no exaggeration to say that the greatest value of the Conference lay precisely in this element of “throwing doubt” on the earlier beliefs: anyone who thus far might have entertained the hope that fast results were within reach, had by the end of 1974 probably given up those high expectations. One further conclusion I drew at the time from the totality of the debate, and which was significantly strengthened in a private conversation with the Australian representative, Mr. Blakeney, was that few results, if any, could be expected in the sphere of protection of combatants, and that efforts had best be concentrated on achieving an improved protection of the civilian population. 3

Subsequent Negotiations

The rest of the story is soon told. The experts met in a second session at Lugano, from 28 January to 26 February 1976. The report on that session is about twice as thick as that of the session at Lucerne, in inverse ratio to the importance of the affair. This time, there were besides the Plenary Meetings, a General Working Group and several Working Sub-Groups, both official and informal ones. A number of documents were produced and annexed to the report. But with one exception, it would be an exaggeration to say that anything critically important had been contributed. The one exception concerns the proposal, introduced there for the first time by the experts of Mexico and Switzerland, to forbid the use of “weapons producing fragments which in the human body escape detection by the usual medical methods.” This proposal on so called non-detectable fragments immediately received widespread support. The debate on conventional weapons was at the same time being carried on at the Diplomatic Conference of Geneva, 1974-1977, where the Ad Hoc Commission met at regular intervals, more often than not merely to listen to lengthy statements by Dr. Blix and his colleagues, to which no response came. When the Diplomatic Conference terminated its work, it could do no more than transmit the whole business to the United Nations. It did this by Resolution 18 19

ICRC, Conference Government Experts on the Use of Certain Conventional Weapons (Second Session Lugano, 28.1-26.2.1 987), Report (1976). Report of the Conference, p. 188: COLU/212.

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22(1V), which recommended the convening of a Conference of Governments no later than 1979, with a view to reaching: (a)

(b)

agreement on prohibitions or restrictions on the use of specific conventional weapons which may be deemed to be excessively injurious or have indiscriminate effects, taking into account humanitarian and military considerations; and agreement on a mechanism for the review of any such agreements and for the consideration of proposals for further such agreements.

It will be noticed that the qualifying elements of excessive injury and indiscriminateness had crept in again, this time – as was to become apparent later – to stay. Another important element was of course the reference to a review mechanism, an aspect that had been much debated at the Diplomatic Conference and to which great importance was attached, especially by those Governments who had their hopes for early results seen frustrated. 4 The UN Convention on Conventional Weapons After two preparatory sessions, the UN Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons Which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects met at Geneva in two yearly sessions, in 1979 and 1980. The Conference produced a Convention with three annexed Protocols. To start with the latter, they deal with “non-detectable fragments” (Protocol I), “prohibitions or restrictions on the use of mines, booby traps and other devices” (Protocol II) and “prohibitions or restrictions on the use of incendiary weapons” (Protocol III). Few of their provisions provide any protection to combatants; this is notably the case with the one and only article of Protocol I and with some of the provisions in Article 6 of Protocol II on the use of booby traps. For the rest, Mr. Blakeney’s prediction came true that the focus would be on the fate of the civilian population. In that respect, there is of course a considerable amount of overlap between the Weapons Protocols and the parts on protection of the civilian population in the Geneva Protocols of 1977. But this is not the whole story: both the Mines Protocol and the Incendiary Weapons Protocol contain specific provisions which provide additional protection. One of these, the rule laid down in Article 2(2) of the Protocol on Incendiary Weapons, held the Conference in suspense till the very last minute. The paragraph provides that: 20 21

Official Records, Vol. I, p. 215. Text adopted, 10 Oct. 1980, opened for signature, 10 April 1981; in force, 2 Dec. 1983; 19 ILM 1523, Cmnd. 8370.

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As this was virtually the only significant addition to the protection of the civilian population afforded by the Protocols of 1977, it was crucial to a number of Governments that the provision would be adopted. At the same time, the United States in particular found it extremely difficult to accept this restriction on the freedom of action of their armed forces. As long as the US delegation could not express its approval of the proposed text, the Soviet Union kept silent too. It was therefore a moment of utter relief when toward the very end of the second session the news arrived that the United States had finally decided to accept the text. Already on the following day, the Soviet delegation could inform the Conference that Moscow had given the green light too – an unusually quick reaction on their part. As in the meantime all the problems attending the setting up of a review mechanism had also been resolved, the Conference could ultimately come to its happy end. The review mechanism, as contained in Article 8 of the Convention, is a model of complexity, and this necessarily so because it attempts to meet a set of virtually irreconcilable goals. There was, first, the goal of those Governments who had wanted more significant results, to ensure that the good work could continue in future. An additional goal of these Governments was to bring even their reluctant partners along in any such future exercise. And there was the goal of these reluctant Governments, to avoid any obligations to accept future meetings, let alone the outcome of such meetings, against their will. All these interests have to some extent found a place in Article 8. Put differently, not too much should be expected of it; or, in the alternative, need be feared of it. This brings me to my final conclusion. The results obtained at Geneva in 1980, while perhaps not impressive, are certainly not negligible either. At all events, they represent the very limit of what could be reached at the time, and in all probability they will remain so for a considerable amount of time to come.

Chapter 16 The Conventional Weapons Convention: Functions of Underlying Legal Principles*

1

Introduction

Neither the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects, adopted in Geneva on 10 October 1980, nor the Protocols annexed to it specify in their operative parts the principles on which the prohibitions and restrictions rest. Such principles may be found, however, in the preamble to the Convention. Four of the twelve preambular paragraphs are relevant here. They list: the “general principle of the protection of the civilian population against the effects of hostilities”; the principle “that the right of the parties to an armed conflict to choose methods or means of warfare is not unlimited”; the ban on “the employment in armed conflicts of weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering”; and the fact that it is prohibited “to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.” The fifth paragraph reiterates the wellknown Martens clause, in the formulation accepted for Article 1(2) of Additional Protocol I of 1977. The remaining seven paragraphs state such evident truths as the duty not to make war and the aspiration of all peoples to live in peace. Taken as a whole, the preamble may strike the reader as a rather more eloquent piece of writing than the operative parts of the Convention and Protocols taken together.

*

1

Abbreviated version of a paper published in 30 IRRC (1990) pp. 510-520. Section 2, “Historical development of the principles”, is left out since its subject-matter is covered in full detail in previous papers in this collection. The operation has affected the numbering of the footnotes to sections 3 and 4, and has led to some slight adjustments in the text. Although preambular paragraphs are generally regarded as non-binding, France upon signature took the precaution of specifying that the last-quoted part of the preamble reproduces Art. 35(3) of the 1977 Protocol I and “applies only to States parties to that Protocol.” Schindler & Toman, The Laws of Armed Conflicts, 3rd ed. (1988) p. 194.

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This is not uncommon: the same could already be said of one of the oldest instruments in the field: viz., the Declaration of St. Petersburg, 1868. While it has only one operative paragraph, on the mutual agreement of the parties to renounce the employment of one type of small-arms projectile, it is adorned with a lengthy and highly idealistic preamble that would not have been out of place in a treaty on the general reduction of armaments. Indeed, the ideas expressed in the preamble of 1868 are very similar to some of the principles embodied in the preamble to the Convention of 1980. This suggests two questions of interest. One concerns the history of principles relating to the employment of weapons of war, and the other the function of such principles. We shall briefly discuss [the second] of these questions. In doing so we shall come across some other matters of general interest that, although not properly belonging under the heading of “principles”, are of sufficient import to deserve some attention in the concluding section of this article. 2 3

[Historical Development of the Principles – left out]

Functions of Legal Principles Relating to Use of Weapons

This section discusses some conceivable functions of these principles in debating or determining the permissibility or otherwise of the use of given weapons. Attention shall be given to the principles’ potential as rhetorical means and as yardsticks or guidelines. Use as rhetoric may well be the most common. Third parties, be they States, international organizations or (groups of ) individuals, may invoke the principles to expose a belligerent for its use of given weapons. That was what happened at the time of the Viet Nam war, with the United States being accused of employing weapons that were said to cause unnecessary suffering or to have indiscriminate effects. A more recent example is the protests against the use of certain weapons by the Soviet Union in Afghanistan. As the examples go to show, the persuasive force of such third-party protests depends on such factors as the authority and good faith of the protesting party, the blatancy of the violation and, last but not least, the vulnerability of the belligerent to the pressures of public opinion. Obviously, the rhetorical invocation of one or other principle may at best have some effect as a means of moral persuasion. It is an observable fact, however, that belligerents often find little difficulty in countering such attacks by equally rhetorical means, such as, by explaining either the facts or the principles, or both, in a manner that appears to justify the use of the weapon. In either case, no final determination of the lawfulness or otherwise of the use of the weapon in question comes about.

2

Schindler & Toman, op. cit., p. 101.

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This brings us to the application of the principles as yardsticks or guidelines. If invoked as yardsticks, they should be able to support a fairly straightforward determination of the legal issue. As guidelines, they need provide little more that a set of basic, perhaps mutually conflicting, considerations that must be weighed in arriving at such a decision. Here the level of abstraction of the principle concerned is a first important factor. This sets the “no unlimited right” rule apart from the other principles. The rule may be said to underlie the obligation created in Article 36 of Additional Protocol I of 1977 for a State to determine whether the employment of a new weapon would bring it into conflict with the law. For the rest, however, the statement that belligerents have no absolute power to introduce weapons of their choice is abstract and devoid of specific content to such a degree that it could find direct application as a rule of law only in the unlikely event of a belligerent expressly claiming such unlimited power. Apart from this entirely theoretical possibility, it can and does serve as a sort of introduction, a reminder that rules of law apply even in this dark corner of human behaviour. It is submitted that the remaining principles are not particularly suited to serve as yardsticks as defined above. In other words, I do not share the optimism of those delegates who believed that “unnecessary suffering” and “indiscriminate effects” provided standards that could simply “be applied to existing and possible future weapons.” For any such straightforward application, their component parts on the one hand and the characteristics of modern weaponry on the other provide far too many complications and difficulties of interpretation. Witness the debate in Lucerne about the notions of suffering and injury and the multiple factors in evaluating the necessity of accepting such suffering or injury in the light of military considerations. It follows that in determining the lawfulness or otherwise of existing or new weapons, the main function of the principles may lie in their capacity to be used as guidelines. As such, they are first of all at the disposal of individual States. As mentioned above, Article 36 of Protocol I requires a State considering the introduction of a new weapon “to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law” applicable to the State. It need hardly be emphasized that this individual assessment of the characteristics and probable effects of a weapon in the light of applicable broad principles leaves much room for subjective interpretation. 3

4

Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974-1977, Official Records, Vol. XVI, pp. 457-459: CDDH/47/Rev. 1, Report of the Ad Hoc Committee on Conventional Weapons, paras. 21-35. See Major General R. Scott, “Unnecessary Suffering? A Medical View”, in M. A. Meyer (ed.), Armed Conflict and the New Law (1989) pp. 271-279.

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Although no obligation exists to this effect, a similar determination may also be made by States collectively, leading to a mutual agreement not to use, develop or introduce a given weapon, or to change its design or restrict its use. In practical terms, this probably is the materially most important application of the principles under consideration. This is what was done in 1899 when the so-called dumdum bullet was banned, and was done again in 1980 when the UN Conference adopted the Convention with annexed Protocols that prohibit or restrict the use of some classes of conventional weapon. A last item to be considered under this heading concerns the possible application of the principles in a judicial or quasi-judicial procedure against a belligerent party. This brings us back, though in a different manner, to the issue of third-party invocation. With the belligerent State in the role of accused party one would have to think in terms of State responsibility. The established rule that a State at war is responsible for all acts committed by persons forming part of its armed forces doubtless extends to the choice of weapons and the way these are used. When doubts arise regarding the lawfulness of such use, one could envisage a fact-finding and possibly conciliatory role for a respected international institution such as the Office of the UN Secretary-General, or even (in a slightly better world) for the Security Council. Obviously, the authoritative force of such an intervention would depend entirely on the authority of the body performing this quasi-judicial function and on the care it takes in arriving at its conclusions. Indeed, even the International Court of Justice, whether acting in an advisory capacity or in a contentious procedure, might be asked to determine whether the use of a particular weapon is in conformity with the applicable principles. Yet surely one must be something of an optimist to consider this latter possibility as anything but theoretical. It should be emphasized that the character of the principles as broad and illdefined guidelines need not stand in the way of such authoritative determination by a body of high standing. It would be for the body concerned to extract and elucidate to the best of its ability the criteria involved, much as a national judge is required to do in applying a broadly phrased piece of municipal legislation. On the other hand, a perusal of [the reports on the series of recent conferences on use of weapons] may convince the reader that the great number of uncertainties in the various equations involved might make the task of such a body of wise men unusually arduous.

5 6

The rule was first codified in Art. 3 of the 1907 Hague Convention on land warfare and reaffirmed with the adoption of Art. 91 of Protocol I of 1977. In this connection reference may also be made to the International Fact-Finding Commission provided by Art. 90 of Protocol I of 1977.

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Concluding Remarks

In his paper for the Lucerne Conference Sir David Hughes-Morgan suggested that the most radical development in the field of generic prohibitions on weapons would be “to lay down specific parameters for weapon characteristics and to prohibit any weapon not falling within them.” However, he continued: It is not yet clear whether sufficient technical knowledge of weapon effects or characteristics exists in order to determine meaningful parameters; and it is difficult to see how such a proposal could be implemented without a system of inspection and control. Any state which disregarded the prohibitions could acquire an overwhelming military advantage. To date, no general agreement on such a system has been reached and it seems unlikely to be attained in the near future.

Sixteen years after Sir David wrote his paper and ten years after the adoption of the Convention with its annexed Protocols, these words have lost none of their relevance. Not only has no further progress been made in the development of meaningful principles governing the use of weapons of war, but even for the existing principles and specific rules no effective “system of inspection and control” has been set up. The one and only provision in the Convention that has a bearing on implementation lays down an obligation of dissemination (Art. 6); important no doubt, but it cannot mask the silence on other matters, such as orders and instructions to ensure observance, repression of breaches, fact-finding or (with one exception) reprisals. There is, on the other hand, a long and complicated provision on “review and amendments” (Art. 8). May this serve one day to remedy such defects and make the “umbrella” Convention with its underlying principles an even more comprehensive and effective protection against the vagaries of the international climate.

7

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Conference of Government Experts on the Use of Certain Conventional Weapons, Lucerne, 24 Sept. - 18 Oct. 1974; report published by the ICRC in 1975. Sir David’s paper on legal criteria is unpublished. The exception is in Art. 3(2) of the Mines Protocol.

Chapter 17 Prohibitions or Restrictions on the Use of Methods and Means of Warfare in the Gulf War, 1980 - 1988*

1

Introduction

Prolonged international armed conflict invariably brings into play a wide array of methods and means by which the belligerent parties seek to obtain their goals. The Gulf War between Iran and Iraq, 1980-1988, has been no exception to this rule. Methods and means used have ranged from non-violent (though often vitriolic) rhetoric and propaganda, through all shapes of economic pressure, to attacks with a great variety of more or less sophisticated weapons of war, including chemical weapons, and directed both against military and civilian targets. While a complete history of the Gulf War might be expected to cover all these aspects, the purpose of this chapter is more modest. Leaving matters of grand strategy and rules relating to the use of force in inter-State relations (jus ad bellum) on one side, it concentrates on those rules of the law of war (jus in bello) embodying prohibitions or restrictions on the employment of violent methods or means of warfare. As the conduct of war at sea is dealt with elsewhere [in Part III of The Gulf War of 1980-1988]), the scope of this chapter is moreover limited to war on land, including attacks from the air on objects on land. Paul Tavernier and Eric David have earlier furnished useful overviews of relevant facts and legal aspects. We have made grateful use of the data provided in their articles as well as of other public and readily available information. The first task in hand will be to determine the rules applicable in the Gulf War. The actual conduct of the belligerent parties will then be considered in the light of these rules. Finally, we shall take a brief look at the repercussions in the outside world of some of the belligerents’ modes of waging the war.

* 1 2

Published earlier as Chapter 3 of L.F. Dekker & H.H.G. Post, The Gulf War of 19801988 (1992) pp. 97-114. P. Tavernier, “La guerre du Golfe: Quelques aspects de l’application du droit des conflits armés et du droit humanitaire”, 30 AFDI (1984), pp. 43 et seq. E. David, “La guerre du Golfe et le droit international”, 23 Revue belge (1987-1), pp. 153 et seq.

400 Chapter 17 2 The Applicable Law Rules prohibiting or restricting the use of methods or means of warfare may be found in treaties, in customary law and, arguably, among the principles of law. First taking the relevant treaties in chronological order, it appears that: – Iran (or Persia, as it was named at the time of the Hague Peace Conferences) is a party to the Hague Convention on Land Warfare with annexed Regulations of 1899; it has not become a party to the revised version of 1907; Iraq is party to neither version; – Iran is, but Iraq is not, a party to the Declaration (IV, 3) Concerning Expanding Bullets, of 1899; the Declaration records the agreement of the parties “to abstain from the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions”; the bullets are commonly referred to as dum-dum bullets; – both Iran and Iraq have ratified the Geneva Gas Protocol of 1925, which reaffirms the prohibition of “the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids materials or devices” (chemical weapons, for short); Iraq has attached a reservation providing in part that it “shall cease to be bound by the Protocol towards any Power at enmity with him whose armed forces, or the armed forces of whose allies, do not respect the Protocol”; – Iran and Iraq have joined in the adoption by consensus of Protocol I of 1977; Iran has subsequently signed but not ratified the Protocol; as it has not made its intention clear not to become a party, it “is obliged to refrain from acts which would defeat [its] object and purpose”;

3

4 5 6

7

8

Convention (II) with Respect to the Laws and Customs of War on Land, with annexed Regulations; signed at The Hague, 29 July 1899; D. Schindler & J Toman, The Laws of Armed Conflicts, 3rd ed. (1988) p. 69; list of signatures, ratifications and accessions, p. 94. Convention (IV) Respecting the Laws and Customs of War on Land, with annexed Regulations; signed at The Hague, 18 Oct. 1907; ibid. Signed at The Hague, 29 July 1899; Persia ratified the Declaration on 4 Sept. 1900; ibid., p. 109. Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva, 17 June 1925; ibid., p. 115; Iraqi reservation, ibid., p. 123. Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted at Geneva, 8 June 1977; ibid., p. 621. Art. 18 of the Vienna Convention on the Law of Treaties, adopted on 23 May 1969.

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neither State has become a party to or a signatory of the Conventional Weapons Convention of 1980; both Iran and Iraq are signatories but not parties to the ENMOD Convention.

Although rules of customary international law are notoriously more difficult to trace, it may be safe to state that: – the substantive rules embodied in the Hague Convention and Regulations of 1899/1907 have become part and parcel of the body of customary law; the pertinent part of the Regulations is Chapter I (Means of Injuring the Enemy, Sieges, and Bombardments) of Section II (Hostilities); – the prohibition on the use of dum-dum bullets has also long since formed part of the realm of customary law; – a significant part of the rules on methods and means of warfare, embodied mainly though not exclusively in Section I (Methods and Means of Warfare) of Part III (Methods and Means of Warfare, Combatant and Prisoner-ofWar Status) of Protocol I of 1977, is generally regarded as belonging to customary law; – these latter rules govern the use of all methods and means of warfare, whether old or new and including incendiary weapons, or delayed-action munitions such as land mines; – confirmation of the customary law character of some of the pertinent basic rules may be seen in the unanimous adoption by the UN General Assembly on 19 December 1968, of Resolution 2444 (XXIII), and in the adoption with no votes against by the same organ, on 9 December 1970, of Resolution 2675 (XXV). 9

10

11 12

13 14

Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, with annexed Protocols; adopted at Geneva, 10 Oct. 1980; Schindler & Toman, op. cit. note 3, p. 179. Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, adopted by A/RES/31/72 on 10 Dec. 1976; ibid., p. 163; while Iran voted in favour of the resolution, Iraq abstained, ibid., p. 169; subsequently, both States signed the Convention; ibid., p. 170. On this, see T. Meron, Human Rights and Humanitarian Norms as Customary Law (1989). It is suggested, in other words, that the bulk of the provisions in the Mines and Incendiary Weapons Protocols annexed to the Conventional Weapons Convention of 1980 have the status of customary law. 0p. cit. note 3, p. 263. Ibid., p. 267; as mentioned on p. 268, the resolution “was adopted by 109 votes to none, with 18 states abstaining or absent”, and a note specifies that “A roll-call did not take place.”

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Turning to principles next, we fortunately need not enter here into the perennial debate about the recognition of principles of law as a separate source of international law, since relevant normative statements that may have commenced their existence as mere principles at best, have meanwhile been incorporated in treaties in force and thereby acquired the status of treaty law. To characterize these normative statements as principles now serves merely to point to their high level of abstraction, resulting in a lesser capacity than other, more concrete rules to provide direct answers to specific questions about the legality of given methods or means of warfare. Pertinent instances include: – the statement that the right of the parties to an armed conflict to choose methods or means of warfare is not unlimited; – the prohibition on the employment of “weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering”; – the prohibition on the employment of “methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment”; and – the principle that the belligerent parties “shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives.” Other notions of primordial interest to our present discussion include: – the responsibility of the State for all acts committed by persons forming part of its armed forces; – its obligation to issue orders and instructions to its armed forces in conformity with the applicable rules;

15 16 17 18

19

20 21

See F. Kalshoven, “The Conventional Weapons Convention: Underlying Principles”, 30 IRRC (1990), p. 510 et seq. Hague Regulations, Art. 22; A/RES/2444 (XXIII); Protocol I, Art. 35(1). Hague Regulations, Art. 23(e) (with slightly different wording); the text as quoted is in Protocol I, Art. 35(2). Protocol I, Art. 35(3);thus far, this recent addition to the list probably has force only as treaty law between the parties to the Protocol, whereas other belligerent parties can probably at best be said to be under a moral obligation not to employ means or methods of warfare that may cause such damage. The principle is implicit in the Hague Regulations; it was expressed in slightly different terms in A/RES/2444 (XXIII) and 2675 (XXV); the phrase quoted in the text is from Protocol I, Art. 48. Hague Convention, version of 1907, Art. 3; Protocol I, Art. 91. As already in Art. 1 of the Hague Convention of 1899, unchanged in 1907; Art. 80(2) of Protocol I adds the obligation to supervise the execution of the instructions.

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the individual criminal liability of all persons for war crimes committed by them or under their responsibility; and, last but not least, the right and moral duty of the international community to ensure respect for the law of war.

Mention should finally be made of the Martens clause, according to which (paraphrasing Art. 1(2) of Protocol I) in cases not covered by treaties applicable between the parties at war, “civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of the public conscience. It should be pointed out that, in spite of occasional suggestions to the contrary, the clause does not have the effect of elevating in particular the “principles of humanity” and “dictates of the public conscience” to the rank of direct, independent sources of international obligation; on the other hand, they do represent important driving forces behind the law of war and its development. 3 The Actual Conduct of the War on Land In the Gulf War, as between the belligerent parties, few means of warfare were prohibited from the outset. However, all means of warfare without exception were subject to rules restricting their use. Moreover, both prohibitions and restrictions may conceivably have been subject to the operation of the principle of reciprocity or the right of reprisal. 3.1

Prohibited Means of Warfare: Chemical Weapons

Specifically prohibited from use were two classes of weapons: dumdum bullets, and chemical means of warfare. Whereas dum-dum bullets do not appear to have played any significant part in the Gulf War (nor in other armed conflicts), chemical weapons did, from a fairly early stage of the war down to the bitter end. The parties were moreover restricted in their choice of weapons by the principle prohibiting the use of means of warfare of a nature to cause unnecessary 22 23

24

Criminal liability for war crimes exists since time immemorial as a rule of customary law. See also chapter 8 of this book, especially the comment by Eric David. This principle can be derived e.g. from Art. 1(1) of Protocol I, providing that “The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all circumstances”; it may be seen in operation in a long series of resolutions of the UN General Assembly and Security Council and of international conferences of the Red Cross calling upon belligerent parties to respect the law. The clause stems from the preamble to the Hague Convention on Land Warfare of 1899, where it was introduced by the Russian delegate to the Peace Conference, Von Martens, to discard the unsolved and at the time insoluble problem posed by armed resistance on the part of the inhabitants of occupied territory.

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suffering. They may also have been under a moral obligation to avoid excessive ecological damage. This author has not, however, come across any claim that in their conduct of war on land, either of these principles has been specifically violated. In practical terms, therefore, we are left with chemical means of warfare as the only specific category of weapons to be considered under the present heading. There appears to be no room for doubt that in the Gulf War, Iraq has been the first, and for a long time the only belligerent to have recourse to such weapons: whether Iran reciprocated in the end is a matter of some uncertainty. No matter the precise facts, too many words need not be wasted on the legal side of the matter: in the relations between Iraq and Iran, the 1925 Geneva Protocol was fully applicable, and the reported Iraqi employment of chemical weapons, whether against Iranian combatants (as it may have been in most instances) or civilians, was indubitably unlawful. It should be pointed out that this lack of legality taints only the Iraqi use of the prohibited weapons. Under the terms of that State’s reservation as well as, plausibly, as a matter of customary law, the first use by Iraq effectively freed Iran as the victim State of its obligation of non-use for the duration of the war. While this would strictly speaking have permitted Iran to respond by unrestrained recourse to chemical weapons, a more commendable course, and one more in conformity with the principle of proportionality, would have been to limit itself to a reprisal in kind (and respecting the limits thereof ) or even to no use at all (with mere propagandistic exploitation of the psychological advantage thus gained). 3.2

Prohibited Methods of Warfare

In contrast with the relative paucity of prohibitions on the use of specific means of warfare, quite a few broad principles and detailed rules restrict belligerents in their choice of methods of warfare. The principles and rules have been authoritatively stated or reaffirmed in Protocol I of 1977. Important principles include:

25 26 27 28

29

See above, note 18. See hereafter, notes 74, 76. On the basis of the principle of reciprocity it was open to Iran to avail itself of the Iraqi reservation. M. Bothe, Das völkerrechtliche Verbot des Einsatzes chemischer und bakteriologischer Waffen – Kritische Würdigung und Dokumentation der Rechtsgrundlagen (1973) pp. 7075. For a case of such propagandistic exploitation, see the remarks of the Iranian representative in the Commission on Disarmament, quoted in Tavernier, loc. cit. note 1), p. 55. See also F. Kalshoven, “Belligerent Reprisals Revisited”, 21 NYIL (1990) p. 43.

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–

the prohibition “to kill, injure or capture an adversary by resort to perfidy”; – the prohibition “to make improper use of the distinctive emblem of the red cross [or the] red crescent…” – the prohibition “to order that there shall be no survivors, to threaten an adversary therewith or to conduct hostilities on this basis”; – the prohibition to resort to “starvation of civilians as a method of warfare.” In common with most wars, isolated offences against either of these principles or the rules elaborating them are likely to have occurred in the Gulf War. The norms in question do not, however, appear to have been the target of systematic, government-controlled encroachment and consequently have not come to the fore in the discussions about the conduct of the belligerent parties. We may accordingly leave it at that. 3.2.1

The Principle of Distinction

Of a different order are the principles, reaffirmed already in 1968 by the UN General Assembly, “That it is prohibited to launch attacks against the civilian population as such” and “That distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible.” Upon closer inspection, the principle of distinction stands out as the more fundamental notion, with the categorical prohibition on attacking the civilian population and civilian objects and the obligation when attacking military objectives to spare the civilian population as much as possible figuring as its derivatives. Protocol I of 1977 elaborates these principles into a set of more or less precise, detailed rules which at least in part belong to customary law and to that extent were therefore applicable, alongside the fundamental principles, in the Gulf War. All these principles appear to have been openly flouted by both parties. Throughout the war the civilian population and civilian objects in enemy territory have often had to suffer the effects of attacks with all available means, including missiles, and directed either deliberately against them or against military objectives but with insufficient regard for the civilian persons and objects in the vicinity. It should be pointed out that at issue here are on the one hand a prohibited method, attack against the civilian population and, on the other, restrictions on recourse to an otherwise permissible method, attack on military objectives. In this context the means used in the attacks, whether as payload 30 31 32 33 34

Protocol I, Art. 37. Protocol I, Art. 38. Protocol I, Art. 40. Protocol I, Art. 54. A/RES/2444 (XXIII), supra note 13.

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(explosive, incendiary, chemical) or carriers (shells, bombs, land mines, ballistic or guided missiles), are largely immaterial. Assuming for the moment that the civilian persons and objects affected were truly civilian in character, the legal state of affairs may be summarized as follows: the prohibition on deliberately making such people or objects the object of attack is straightforward and categorical – except for a possible justification as reprisals, a point to which we shall come back shortly. Attacks on military objectives, on the other hand, are permissible in principle, and it is only by the transgression of certain limits that such attacks become unlawful. The limit at issue here was expressed in broad terms in the quoted UNGA Resolution 2444 of 1968 as the duty to spare the civilian population as much as possible. Protocol I of 1977 develops this precept into a set of rules relating to “incidental loss of civilian life, injury to civilians and damage to civilian objects.” The ideal is total avoidance of such loss or damage; when this proves impracticable, loss or damage should be minimized, and the outer limit is where such loss or damage would be “excessive in relation to the concrete and direct military advantage anticipated” as a result of the attack: violation of this rule of proportionality turns the operation into an indiscriminate attack. Implicit in these rules is the assumption of the truly civilian character of the persons and objects in question. Can it be argued that in the Gulf War, the populations of the countries at war had lost that quality? In an article appearing in 1984, Geoffrey Best has forcefully reminded us of the developments in the late 19th and 20th centuries, with the increasing involvement of the populations in the economic and political processes that determine the capacity of a State to wage war. These developments, which in the past already had led to the practice of “total war”, were very much in evidence in the Gulf War. At the same time, Best exhorts us to bear in mind that “The principles of discrimination between the real civilian and the real combatant remain crucial to a morally acceptable law of war.” This is, of course, precisely the purpose of the principles and rules on protection of the civilian population against effects of hostilities, as elaborated in Protocol I of 1977 but, it should be reiterated, with their roots firmly anchored in customary law. And the authors of these principles and rules have consciously rejected all notions of “war effort” or political inseparability of civilians and combatants, as factors to be taken into account in the elaboration of the principle of distinction. In effect, the single factor capable of temporarily depriving civilians

35 36 37 38

Protocol I, Arts. 51-57; the quoted phrase is from Art. 57(2)(a)(ii). Protocol I, Art. 51(4, 5); Art. 57(2)(a)(iii) and (b). G. Best, “Civilians in Contemporary Wars, a problem in ethics, law, and fact”, 35 Air University Review (1984), pp. 29 et seq. Ibid., p. 39.

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of their protection as such is specified as “taking a direct part in hostilities”. No matter how broadly construed, this term definitely does not encompass participation in the economic war effort, let alone belonging to the same political party or adhering to the same ideology as the national leader. Our conclusion is, therefore, that for purposes of the law of war, and irrespective of the possible degree of solidarity between combatants and civilians, the non-combatant part of the populations in Iran and Iraq had retained its civilian character throughout the war. There remains the question of the possible relevance of theories of reciprocity or reprisal for the justification of one belligerent’s attacks on, or causing incidental damage to, the adverse party’s civilian population. A first point is that plain negative reciprocity apparently has never been claimed as a consideration justifying such attacks, and understandably so, because the factor of direct military necessity that could warrant such a construction does not apply here. What about reprisals? While many classes of persons and objects have long been effectively protected from the impact of belligerent reprisals, with an important set of broad prohibitions dating from the Geneva Conventions of 1949, the alleged right of reprisal against the civilian population or civilian objects in unoccupied enemy territory has remained a highly controversial issue even after the introduction of a series of express prohibitions on recourse to such reprisals in the section of Protocol I of 1977 devoted to the general protection of the civilian population against the effects of hostilities. As these treaty prohibitions did not as such bind the parties to the Gulf War, their relations in this respect were governed by the uncertain rules of customary law. The uncertainty of the law concerns the question whether reprisals against the enemy civilian population and civilian objects are at all permissible. Assuming

39 40

41 42

Protocol I, Art. 51(3). Negative reciprocity, i.e. the right to disregard a rule because the enemy has previously done so, may be a valid argument when it comes to the employment of weapons (such as chemical weapons) of direct military significance to the progress of the military operations. It may be seen to underlie the reservations many States have attached to their acceptance of the prohibition of chemical weapons. F. Kalshoven, Belligerent Reprisals (1971). Art. 51(6): attacks against the civilian population or civilians by way of reprisals; Art. 52(1): civilian objects not the object of reprisals; Art. 53(c): no reprisals against protected cultural objects or places of worship; Art. 54(4): no reprisals against objects indispensable to the survival of the civilian population; Art. 55(2): prohibition of attacks against the natural environment by way of reprisals; Art. 56(4): no reprisals against works or installations containing dangerous forces the release of which may entail severe losses among the civilian population. Recent literature on the subject includes: Françoise Hampson, “Belligerent Reprisals and the 1977 Protocols to the Geneva Conventions of 1949”, 37 ICLQ (1988) p. 818 et seq.; Christopher Greenwood, “The Twilight of the Law of Belligerent Reprisals”, 20 NYIL (1989) pp. 35 et seq.; Kalshoven, loc. cit. note 29.

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for the sake of convenience that this is still the case, they are then governed by the established customary rules applying to belligerent reprisals in general, viz., recourse only after due warning and as a last resort, proportionality to the wrong retaliated against, termination as soon as the cause no longer obtains. An additional constraint is sometimes seen in the principle of humanity (with reprisal attacks against the civilian population being regarded as inhumane), but it is precisely here that uncertainty has prevailed ever since the matter was first brought up for discussion. To this author it seems unsafe to rely on such a controversial principle. In this situation, it is a question of fact whether in the Gulf War a first serious encroachment on the rules for the protection of the civilian population might have been followed by a genuine reprisal. An episode related by Tavernier is of interest here, suggesting as it does that Iraq in late 1983 came close to formulating what might have amounted to a threat of reprisals. By that time, however, Iraq probably had forfeited any right of reprisal if we may assume, with David, that it had been the first in 1982 to start the bombardment of enemy cities. Be this as it may, it seems likely that, as on earlier occasions and notably in the Second World War, this or the other party may occasionally have used the word “reprisal” or phraseology reminiscent of that notion, but such use was rhetorical and propa43

44 45 46

To buttress his denial of the continued legality of reprisals against the civilian population David advances the following arguments: (1) Art. 60(5) of the Vienna Convention on the law of treaties excludes “provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular … provisions prohibiting any form of reprisals against persons protected by such treaties” from the application of the principle that a party to a multilateral treaty specially affected by a material breach may invoke the breach “as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State”; (2) Art. 51(6) of Protocol I prohibits reprisals against the civilian population, and (3) the statement in A/RES/2675 (XXV) that civilians “should not be the object of reprisals …” op. cit. note 2, pp. 163-164. As against this, it should be noted that Art. 60 of the Vienna Convention is applicable to treaty law and, as David himself specifies, the single treaty provision relevant here, the cited paragraph of Art. 51 of Protocol I was not in force between the parties; as the negotiating history of Protocol I makes abundantly clear, the paragraph cannot with any degree of certainty be said to reflect customary law, and neither can A/RES/2675 (XXV) be held to have decided the issue in a manner legally binding the parties to an armed conflict. This is not to suggest that reprisals against the civilian population are something commendable: far from it, and there is a strong moral argument against them. See also Kalshoven, op. cit. note 41. Kalshoven, op. cit. note 41, pp. 112-114, 353-361. 0p. cit. note 1, pp. 59-60. David, loc. cit. note 2, pp. 161-162. There may, however, be some ground for the view that the early bombardments and shellings affecting civilian areas were not directed against the civilian population as such and, possibly, were not even clearly indiscriminate; see the report of the UN mission that in 1983 inspected civilian areas in Iran and Iraq which had been subject to attack, annex to S/15834.

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gandistic rather than seriously meant to justify their attacks against or affecting the enemy civilian population. By way of conclusion it is submitted that the attacks carried out on either side against the civilian population and civilian objects in enemy territory violated basic precepts of the law of war applicable between the parties and could not be justified as legitimate reprisals. The attacks were, rather, acts of terror designed to bring the enemy to his knees. Even as such they failed completely, as neither party budged an inch under the impact of the attacks. 3.2.2

Nuclear and Oil Facilities

While in the foregoing the focus was on the civilian population and civilian objects in general and without differentiation as to specific targets, it remains to mention two such specific classes of target, viz., nuclear and oil facilities. Tavernier makes mention of an accusation on the part of Iran that Iraq had attacked a nuclear power station in Iranian territory. Assuming this to have been the case, the question arises whether the attack was necessarily unlawful. Had Protocol I of 1977 been applicable between the parties, Article 56 would have provided the answer. Under its terms the installation was immune from attack even if it represented a military objective, provided such attack might “cause the release of dangerous forces and consequent severe losses among the civilian population”, and even then unless the power station “provide[d] electrical power in regular, significant and direct support of military operations and if such attack [was] the only feasible way to terminate such support.” The answer was, in other words, a greatly qualified “yes”, with the final outcome depending on the facts of the case. It should be added that the whole matter of enhanced protection of “works and installations containing dangerous forces” was controversial from the outset and the language now found in Article 56 is very much a result of compromise. In these circumstances it appears inadmissible to treat the rules embodied in Article 56 as anything but treaty law. There is, moreover, little evidence that customary law already prohibits attacks on nuclear power stations other than in terms of the general principles for the protection of the civilian population and civilian objects. It seems therefore safe to conclude that as between the parties to the Gulf War, an attack on a nuclear power station would have been perfectly proper if there were sufficient grounds to regard the object as a military objective and the attack could be carried out without unduly severe losses among the civilian population. From an early stage of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, 1974-1977, representatives of a number of Arab States, with Iraq among 47

Op. cit. note 1, p. 45.

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them, have done their best to make oil facilities the object of special protection. Their initiative may have been prompted more by a desire to protect their vast economic resources rather than any other value, such as civilian life or the environment. At all events, they initially, first covertly and later openly attempted to bring these objects under the umbrella of the “works or installations containing dangerous forces” of Article 56. Subsequently, once the idea of oil facilities as objects containing dangerous forces within the meaning of this Article had failed to gain currency, they strove to achieve their purpose by introducing proposals for their separate protection. Finally, when these attempts remained equally unsuccessful, the representatives withdrew their proposals. It is indeed fairly obvious that oil facilities are too much of a natural military objective in many situations, and had proved so in the past, to make the idea of their special protection widely acceptable. It is just one of those ironies of history that the Gulf War, with one of the belligerent parties among the most directly interested protagonists of such protection, should have been the first major war 48

49

50

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This appears the most plausible interpretation of the proposal of 14 Arab States to replace the word “namely” in paragraph 1 of the draft article (making the list of objects containing dangerous forces a limitative one) by “such as” (which would turn it into an open-ended provision); 3 Official Records (or OR), p. 224: CDDH/III/76 and Add. 1, 21 March 1974; more plausible, in effect, than the official reason given by the Egyptian representative introducing the amendment, that “the article should cover any new installations that might be produced by modern technology in the future.” 14 OR, p. 151: CDDH/III/SR./18, para. 32: Mr. El Ghonemy. Oil facilities were openly proposed for protection in the competent working group of Committee III in the course of the 2nd (1975) session; 15 OR, p. 352: CDDH/III/264/ Rev. 1, Report to Committee III on the work of the Working Group submitted by the Rapporteur. As noted in the report of the Rapporteur (supra note 49): “it was agreed that these [i.e., oil rigs, petroleum storage facilities, and oil refineries] were not objects containing dangerous forces within the meaning of this article…” The report goes on to say “that, if these objects are to be given any special protection by the Protocol, it should be done by another article, perhaps by a special article for that purpose. The Rapporteur has agreed to consult further with interested representatives on this question.” Significantly, already the report of Committee III on its work during the 1975 session, which repeats verbatim the greater part of the reports of the Working Group, no longer contains the language quoted in the previous notes; CDDH/III/215/Rev. 1, pp. 282-284. However, it does record the adoption by consensus of the article on 14 March 1975; p. 284. After the vote, the Egyptian delegate repeated his expectation “that questions concerning petroleum refineries and related installations would be covered in a separate article”; 14 OR p. 299: CDDH/III/SR. 31, para. 56: Mr. El Ghonemy. The report of Committee III on the work at the 4th (1977) session, CDDH/407/Rev. 1, para. 12, records the ultimate failure: “… a proposal concerning “General principles for the protection of oil and of installations for its extraction, storage, transport and refilling” (CDDH/III/GT/62/Rev. 1) was withdrawn by its sponsors.”

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since the adoption of Protocol I to see the proposed principle summarily brushed aside. Be this as it may, the episode can lead to no other conclusion than that as between the belligerent parties oil facilities were not specially protected from attack. 3.2.3

Attitudes of the Parties

The above overview of the actual conduct of the war shows a high degree of disrespect for relevant parts of the law, demonstrated at the highest political and military levels. Throughout the war, Iraq persisted in its employment of chemical weapons, and both belligerents frequently and openly disregarded the principles and rules for the protection of the civilian population against the effects of hostilities. The fact that Iran did not in turn make massive use of chemical weapons may have had as much to do with practical capabilities as with a sense of moral obligation. Yet it is of interest to quote here from a report of the UN Secretary-General on a visit he had paid to Iran and Iraq in April 1985. In the course of his visit he had made a double attempt: to induce both parties to agree to a cease-fire as well as, in the meantime, to respect the applicable law of war. On the latter point, the position of Iran was that “the application of specific conventions and protocols cannot be conditional upon a cease-fire: they have been adopted precisely to mitigate the effects of the war.” In contrast, Iraq took the position that “any specific measures to mitigate the effects of war must be clearly linked to a comprehensive cease-fire within a timetable; otherwise they would have the effect of prolonging the war.” One can only comment that Iran’s position was entirely correct; and if Iraq was serious in what it told the Secretary-General, it had completely missed the point of the law of war. One wonders moreover how in 1985, after five years of ruthless warfare, Iraq could still believe that its gross and systematic violations of the law were effectively shortening the war: to the interested onlooker, nothing of the kind appears to have been the case.

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Interestingly, Iranian authorities in Abadan at one stage explicitly took the view that an oil refinery complex near the city, which had been under Iraqi attack, “was not a civilian area and could be considered an economic installation of military significance and, therefore, a legitimate target”; as stated in the report of the UN mission that in 1983 inspected civilian areas in Iran and Iraq which had been subject to attack, UN Doc. S/15834, annex para. 42. Another matter is whether attacks on such installations may become unlawful as against third parties when the attacks entail unacceptable environmental pollution; on this see David, loc. cit. note 2, pp. 164-166. UN Doc. S/17097, 12 April 1985, paras. 8, 9. See also F. Kalshoven, Constraints on the Waging of War (1987) pp. 2-3.

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Repercussions in the Outside World

To say that the Gulf War has entailed strong repercussions in the outside world is to force an open door. Much of this had to do with the vast economic and other interests involved: the procurement of oil, the arms trade, etc. As for public opinion and the media, there was also a good deal of protest against certain unlawful modes of conducting the war by either belligerent. It would be of interest to know whether condemnation of these practices was general, perhaps even world-wide, or merely restricted, say, to the Western world. For want of such information, I can only say that at least in the Netherlands, both the use of chemical weapons and the indiscriminate attacks affecting the civilian population were generally condemned, with perhaps the stronger focus on chemical weapons. For the States that did not take an active part in the war, an obvious main concern was to maintain, and be seen to maintain, a neutral posture, especially when it came to defending their rights and notably the crucially important freedom of navigation in the face of both belligerents’ military operations. But they were concerned too with the issues arising out of the employment of chemical weapons and the attacks on civilian targets, and from time to time exerted such influence as they had to bring the belligerents to respect their obligations under the law of war. In this respect, it seems safe to regard at least the right of States to attempt to induce in belligerent parties a greater respect of the law of war, whether customary or conventional, as of general applicability. 4.1

Protecting Powers

“The present Convention shall be applied with the co-operation and under the scrutiny of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict.” Thus reads the opening sentence of Article 8 common to Geneva Conventions I-III, and Article 9 of Convention IV, of 1949.Ever since its adoption, rare exceptions apart, the phrase has remained the expression of a pious wish rather than a living reality; neither has the reinforcement of the system of Protecting Powers in Article 5 of Protocol I of 1977 thus far been able to modify the state of affairs. In the Gulf War of 1980-1988, in line with this regrettable trend, Protecting Powers were not appointed by the belligerents. Even had it been otherwise, the impact of the activities of Protecting Powers on the events discussed in the present paper might have been limited at best. The idea of a significant role for Protecting Powers in the “supervision and implemen57

That States are entitled to react to belligerent parties’ violations of the law of war is expressed in so many words in Art. 1 common to the Geneva Conventions of 1949 (and of course, in its form as treaty law directly applicable only to those Conventions), as part of the undertaking of the contracting States “to respect and to ensure respect for the present Convention in all circumstances.” Art. 1(1) of Protocol I of 1977 reiterates this formula.

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tation” of the law of war was devised especially in the context of the part of the law properly called the “law of Geneva” and dealing with the treatment of war victims in the hands of the enemy. Significantly, while the supervisory function of Protecting Powers blossomed in the First World War and was for the first time incorporated in the Prisoners of War Convention of 1929, the international legislators of the period did not consider entering a similar provision in the Geneva Gas Protocol of 1925. True, the broad language of Article 5 of Protocol I of 1977 suggests an expansion of the role of Protecting Powers to encompass the Hague-type rules in the Protocol as well, and these include the rules relating to means and methods of warfare. However, to implement this in practice would imply a significant departure from the original idea of a Protecting Power which (in addition to its normal diplomatic function of safeguarding the interests of belligerent party A in its relations with party B) assumes, at the behest of A and with the agreement of B, the supervision of the treatment of nationals of A in the hands of B. To supervise, say, the implementation of the rules relating to the protection of the civilian population from the effects of military operations, or those prohibiting the use of a specific (class of ) weapon, would require for the Protecting Power, reversing its traditional role, also to perform supervisory activities on behalf of B, as the potential victim of violations of the rules on the part of A. This would in turn require, not only the need to bring into the field an entirely different type of inspector, but a more perfectly neutral stance than a Protecting Power would normally be expected to maintain: a sort of Swiss neutrality, so to speak. 4.2 The ICRC This brings to mind the institution that from its creation in the 1860s has done its utmost to maintain such “Swiss” neutrality and in all armed conflicts to extend its supervisory functions to both sides to the conflict: i.e., the ICRC. As far as relevant here, this is recognized in two ways in treaty law: by indicating the

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To use the terms of Art. 5 of Protocol I. Arts. 86, 87; op. cit. note 3, p. 359. The opening phrase of Art. 5 reads: “It is the duty of the Parties to a conflict from the beginning of that conflict to secure the supervision and implementation of the Convention and of this Protocol by the application of the system of Protecting Powers…” (emphasis added). See F. Kalshoven, ”Impartiality and Neutrality in Humanitarian Law and Practice”, 30 IRRC (1990), pp. 516-535, in particular pp. 527-531.

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ICRC as a natural substitute at least for the humanitarian functions of Protecting Powers, and by recognizing its independent right of humanitarian initiative. While these functions and this right of initiative primarily envisage the protection of war victims in the classical Geneva sense (in the main, the wounded and sick, prisoners of war, and civilians in occupied territory), the ICRC has long also been concerned with the fate of human beings suffering the direct impact of hostilities. Thus, ever since the First World War it has raised its voice against the use of chemical weapons and the bombardment of civilians. In the Gulf War too, the ICRC from an early stage has continued to remind the parties of their obligations not to attack the civilian population and in attacking military objectives to spare it as much as possible. Shedding its habitual discretion it repeatedly made its concerns public, calling on the parties to the conflict to terminate their violations of the fundamental principles involved and asking the international community to support these appeals. In the same vein, though initially somewhat more hesitantly, it publicly exposed the use of chemical weapons. The immediate effect of its remonstrations on the belligerents’ conduct of the war may have been slight, although of course each belligerent was invariably willing to assure the ICRC of its intention to respect the law and at one time even asked the ICRC to send delegates to visit the civilian victims of its enemy’s acts of indiscriminate violence. More important may have been the indirect effects, through the mobilisation of public opinion, third States and the United Nations. 4.3 The United Nations While the Security Council from the outset was concerned with the war between Iran and Iraq, its prime focus throughout the war was obviously on the termination of hostilities and the restoration of peace and security in the region. This also determined the main thrust of the mandate of the Secretary-General in his many activities relating to the war. Yet, in the course of time, both United 62 63 64 65

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Art. 10(3) common to Geneva Conventions I-III, Art. 11(3) of Convention IV, Art. 5(4) of Protocol I of 1977. Art. 9 common to Conventions I-III, Art. 10 of Convention IV, Art. 81(1) of Protocol I. Public appeals of this order are recorded in each of the ICRC annual reports for the years 1983-1988. As related in the annual report for 1984, a first veiled condemnation (of “products prohibited by the law of war”) was made public on 7 March 1984. The report for 1987 relates that after a special UN mission had reported on the use of chemical weapons, the ICRC in May of that year had officially informed the belligerents of its concern in this regard. Report for 1987.

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Nations organs became involved in efforts to bring the belligerents to an attitude of respect for the law of war as long as the fighting lasted. As far as the issues dealt with in this chapter are concerned, the effect of military operations on the civilian population chronologically was the first to require their attention, soon to be accompanied and in some measure overshadowed by the employment of chemical weapons. 4.3.1

The Principle of Distinction

On 31 October 1983 the Security Council for the first time officially expressed its concern at the “heavy losses of civilian lives and extensive damage caused to cities, property and economic infrastructures” as a result of the war, and it called “for the immediate cessation of all military operations against civilian targets, including city and residential areas.” It did this on the basis, inter alia, of a report of the Secretary-General dated 20 June 1983 on a mission he had dispatched to both countries at war to inspect civilian areas that had suffered the effects of military operations. The mission had toured war zones in Iran and Iraq in May 1983 and visited a number of cities and villages located in the border area which had suffered greater or lesser damage as a result of the impact of bombs, missiles or artillery shells. Its report provides excellent insight into the functions of a fact-finding mission in a war zone, the skills required of its members and the difficulties it may expect to encounter. Striking features are the systematic, detailed description of relevant facts such as losses and damage suffered or the presence of objects in the vicinity that might be regarded as military objectives, and the carefully phrased, balanced conclusions drawn on the basis of the facts so established. Significantly, the mission neither accused any party of having carried out attacks in violation of the law, whether against the civilian population as such or indiscriminately against military objectives and civilian objects, nor did it attempt to justify any attacks on military or legal grounds. Had it done so, it would surely have overstepped the limits of its terms of reference as well as, more importantly, of its possibilities in the circumstances. In subsequent phases of the war, both parties resorted to deliberate attacks on civilian targets in the enemy hinterland to a far greater degree than in the comparatively mild opening phase of the war. Both the Security Council and the President speaking on behalf of its members more than once condemned recourse to such methods and called upon the parties to put an end to it. 67 68 69 70

S/RES/540 (1983) of 31 Oct. 1983. UN Doc. S/15834. S/RES/582 (1986) of 24 Feb. 1986; S/RES/598 (1987) of 20 July 1987. UN Doc. S/17004, 5 March 1985, expressing alarm over reports that the parties were “attacking or preparing to attack civilian areas”; UN Doc. S/17036, 15 March 1985,

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Particularly vigorous efforts to the latter effect were made by the SecretaryGeneral, who from an early stage attempted to bring about a sort of cease-fire, or moratorium, by which the belligerents would agree to desist from deliberate attacking purely civilian targets. On 14 June 1984 he was able to report to the Security Council that the belligerents had given such undertakings effective from 12 June. Noting that each of the parties “had made independent requests for arrangements to verify compliance with the undertakings”, he set up two teams, each consisting of three officers drawn from the UN Truce Supervision Organization and one official of the Secretariat, and with the mandate to inspect specific allegations of violations of the undertakings and report to him. On 29 June, in a letter to both parties, he noted with satisfaction that they were “implementing in good faith their undertakings to refrain from military attacks on purely civilian areas.” Even so, the belligerents soon resumed their attacks with increased intensity, leading the Secretary-General to express his dismay “that the moratorium on attacks on purely civilian areas has not been respected.” 4.3.2

Chemical Weapons

A similar, rather disappointing story must be told about the exertions of UN organs to make the belligerents refrain from the use of chemical weapons. From 1984 onwards the President of the Security Council and since 1987 the Council itself have frequently reminded the belligerents of the need to abide strictly by the provisions of the 1925 Gas Protocol. The President in particular has not hesitated to do so in terms that were ever more directly addressed to Iraq. All of these statements and resolutions were based on the findings of specialists dispatched

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expressing concern “over the scale of the renewed hostilities”; UN Doc. S/18538, 22 Dec. 1986; UN Doc. S/19626, 16 March 1988. UN Doc. S/16627.The members of the Security Council soon agreed with the proposed measures (UN Doc. S/16628) and the system became effective as from 15 June 1984. UN Doc. S/16663. UN Doc. S/17097, 12 April 1985: report on his visit to Iran and Iraq, para. 2. UN Doc. S/16454, 30 March 1984; UN Doc. S/17130, 25 April 1985, specifying that chemical weapons had been used “against Iranian soldiers”; UN Doc. S/17932, 21 March 1986, repeating in so many words the conclusion of experts “that chemical weapons on many occasions have been used by Iraqi forces against Iranian forces”; UN Doc. S/18863, 14 May 1987, adding to the previous statement “that civilians in Iran also have been injured by chemical weapons” and, using a significantly different phraseology, “that Iraqi military personnel have sustained injuries from chemical agents.” S/RES/598 of 20 July 1987, referring cautiously to “the use of chemical weapons contrary to obligations under the 1925 Geneva Protocol”; S/RES/612 of 9 May 1988, expressing the Council’s expectation that “both sides [would] refrain from the future use of chemical weapons”; S/RES/620 of 26 August 1988 (!).

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by the Secretary-General to investigate allegations (mostly by Iran) that chemical weapons had been used. The first mission was sent in March 1984, and the last one in mid-August 1988. Again, their reports represent important sources of information on the task of fact-finding missions in countries at war and the obstacles they are apt to encounter. Unfortunately, however, none of this was enough to bring about a change in the Iraqi mode of conducting the war. In the end, even the specialists were losing faith. As they noted in their report of 6 May 1987: We all firmly believe that, at the specialist level, we have done all we can to identify the types of chemicals and chemical weapons being used in the IranIraq conflict. If, in the future, a further mission is requested, then we will of course all be ready to respond. However, we now feel that technically there is little more that we can do that is likely to assist the United Nations in its efforts to prevent the use of chemical weapons in the present conflict. In our view, only concerted efforts at the political level can be effective in ensuring that all the signatories of the Geneva Protocol of 1925 abide by their obligations. Otherwise, if the Protocol is irreparably weakened after 60 years of general international respect, this may lead, in the future, to the world facing the spectre of the threat of biological weapons.

In transmitting the specialists’ report to the Security Council, the SecretaryGeneral underscored their concern and he urged “the parties concerned and all Governments to direct their full attention to the implications of the present report.” On 25 July 1988, once again transmitting a report of the specialists, he added that: In stressing once more the necessity for restraint and compliance with universally recognized rules of international law, and bearing in mind the ongoing efforts being pursued in the Conference on Disarmament towards a multilateral convention on the complete and effective prohibition of the development, 76

UN Doc. S/16433, 26 March 1984; UN Doc. S/17127 and Add. 1, 17 April 1985; UN Doc. S/17911 and Add. 1, 12 March 1986, containing testimony even of Iraqi military personnel on the use of chemical weapons by their own forces; UN Doc. S/18852, 8 May 1987, investigating also Iraqi allegations of Iranian use and concluding on this score that “Iraqi forces [had] been affected by mustard gas and a pulmonary irritant, possibly phosgene” but adding that “in the absence of conclusive evidence of the weapons used, it could not be determined how the injuries were caused” (leaving open, in other words, which side the chemical agents had come from); UN Doc. S/19823, 25 April 1988; UN Doc. S/20060, 20 July 1988, noting that in view of the rapid disappearance of certain volatile gases it might “be necessary to review existing machinery for verification by United Nations teams of the use of chemical weapons in order to ensure the timely presence of experts at the site of alleged attacks”; UN Doc. S/20063, 25 July 1988; UN Doc. S/20134, 19 August 1988.

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In the 1970s, when important parts of the law of war came up for revision, one crucial problem was how to improve the enforcement of the law. Of all the ideas put forward few were retained, and then for the most part in greatly watereddown fashion. Two aspects are of particular interest here. One is that attempts to introduce the United Nations in a supervisory capacity were unsuccessful: the only provision in Protocol I reminiscent of these attempts is Article 89, laying down the undertaking of the contracting States in “situations of serious violations of the Conventions or of this Protocol … to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter.” The other is the introduction in Article 90 of an independent International Fact-Finding Commission, to be established when twenty contracting States have agreed to accept its competence as outlined in the Article. The experience of the Gulf War highlights the importance of fact-finding in the field. True, it did not noticeably change the practices of the belligerents. Yet, it did provide a solid basis for the endeavours of the international community to put a stop to their reprehensible conduct. When in due time the International Fact-Finding Commission of Article 90 is established, it will do well to study closely the reports of the various missions on their visits to the area. The Gulf War also has highlighted the potentialities of a UN SecretaryGeneral dedicated to the cause of humanitarian principles. His “overriding constitutional responsibility under the Charter” was from the outset, and remained throughout, “to seek an end to the conflict.” However, until that goal was achieved, he considered himself “also legally obliged under recognized international humanitarian rules to try to mitigate its effects, in areas such as attacks on civilian population centres, use of chemical weapons, treatment of prisoners of war and safety of navigation and civil aviation.” Little does it matter that his sense of legal obligation finds no basis in the conventional law of war: what counts is that his persistent efforts have contributed greatly to enhancing general understanding and respect for the law of war. 77

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The relevant provisions in Protocol I of 1977 include: Art. 5 on the appointment of Protecting Powers or substitutes; Art. 6 on the recruitment and training of qualified personnel; Art. 7 on meetings of the contracting States “to consider general problems concerning the application of the Conventions and of the Protocol”; Art. 81(l), on facilities for the ICRC; Art. 89 on cooperation among the contracting States in the event of serious violations; and Art. 90 on the establishment and facultative functioning of an International Fact-Finding Commission UN Doc. S/17097, 12 April 1985: report of the Secretary-General on his visit to Iran and Iraq, para. 7.

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There remains, of course, a sense of deep frustration that all the efforts to bring the belligerent parties to respect their clear legal obligations under the law of war ultimately remained without success. This shows, on the one hand, the tremendous difficulty in including a really determined leadership to change its modes of conducting a war; and, on the other, the urgent need to continue the dissemination of knowledge and understanding of the principles of the humanitarian law of war.

Chapter 18 The Protection of Cultural Property in the Event of Armed Conflict within the Framework of International Humanitarian Law*

An introduction to the history, specificities and significance of the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict having been made by other authors, the purpose of this article is to explore the wider world of general international law, a world where the phrase “cultural property” is not even mentioned. Admittedly, we will come across a closely related term, i.e., “cultural objects”, frequently in combination with “places of worship”. But it will be some time before we arrive at even those terms. The particular area of general international law to be discussed here is international humanitarian law, or, by its more traditional name, the “law of war”. Based on the understanding that war is about death and destruction, this body of law endeavours to mitigate these effects, along two lines. One concerns the prohibition or restriction of the use of certain means and methods of warfare, and the other, rules for the protection of certain classes of persons and objects. In the 1950s, in the wake of the adoption of the four Geneva Conventions of 1949, the phrase “international humanitarian law” came into use, at first solely for this latter, protective part of the law of war. Military circles were not enthusiastic at the time about the suggestion that “their” battlefield law would be referred to as humanitarian law as well. They felt that this shift in name masked the true, intrinsically harsh nature of battlefield law and, indeed, risked heralding the introduction of unduly soft, protective, elements into it. Conversely, members of *

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Published earlier in 228 Museum International (2005) pp. 61-69, as an elaborated version of a paper read at the UNESCO conference held in Paris in 2004 celebrating the 50th anniversary of the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict. For an earlier anniversary of the Convention, see Jean de Breucker, “Pour les vingt ans de la Convention de La Haye du 14 mai 1954 pour la protection des biens culturels”, in Revue Belge de droit international (1975) pp. 525-47. Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Convention (III) Relative to the Treatment of Prisoners of War; Convention (IV) Relative to the Protection of Civilian Persons in Time of War. For these texts and other relevant treaties see D. Schindler & J. Toman, The Laws of Armed Conflicts, 3rd ed. (2004); A. Roberts & R. Guelff, Documents on the Laws of War, 3rd ed. (2000); ICRC website: www.icrc.org.

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the Red Cross and Red Crescent community were afraid of seeing the notion of protective humanitarian law contaminated with crude battlefield law. Be this as it may, the point became moot with the drafting of the two Protocols of 1977 – one applicable in international armed conflicts and the other in specified internal armed conflicts. While the diplomatic conference of 197477 that drew up the Protocols had as its mandate and title “the reaffirmation and development of international humanitarian law applicable in armed conflicts”, both Protocols contain a mixture of the two types of rule mentioned before. Therefore, the phrase “international humanitarian law” has become a common expression as a synonym to the “law of armed conflict”; but these expressions have not necessarily acquired an identical meaning for everybody. As noted, the term “cultural property” made its entrance into the law of armed conflict with the Convention of 1954, and it figures only in that context. Yet the previous speaker, Adriaan Bos, has reminded us that the protection of certain specified, culturally valuable buildings had already been introduced in the Regulations on Land Warfare of 1899/1907. Article 27 of the Regulations provides that in sieges and bombardments, attacking forces must do whatever is necessary to spare these buildings “as far as possible”, always provided that they “are not used at the same time for military purposes.” The Article also instructs the besieged to mark the buildings with “distinctive and visible signs” and to let the enemy know what signs are used. However, it stops short of suggesting what signs might be suitable for this purpose. The Convention of 1907 on naval bombardment actually prescribes such a specific sign, described as “large, stiff rectangular panels divided diagonally into two coloured triangular portions, the upper portion black, the lower portion 3

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Protocol Additional to the Geneva Conventions of 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977; Protocol Additional to the Geneva Conventions of 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II). CDDH (after its French acronym), convened in 1974 by the Swiss government. Official records published by the Swiss government, vols. I-XVII. Regulations annexed to Hague Convention (II) with Respect to the Laws and Customs of War on Land, 29 July 1899, and to Hague Convention (IV) Respecting the Laws and Customs of War on Land, 18 Oct. 1907. Art. 27 of the Regulations, as amended in 1907, provides that: In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes. It is the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs, which shall be notified to the enemy beforehand. Hague Convention (IX) concerning Bombardment by Naval Forces in Time of War, 18 Oct. 1907.

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white.” I do not know whether naval forces intent on bombarding a coastal site ever sighted such devices. Yet it seems beyond doubt that the duty to utilise these large and stiff rectangular black-and-white panels has not become part of customary law and, in effect, may have become obsolete even as treaty law. In contrast, as held by the International Military Tribunal in its Judgment of 1946, the rules of warfare embodied in the Hague Convention and Regulations of 1899/1907 “were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war” as referred to in the Charter of the Tribunal, i.e., as customary law. I see no reason why this pronouncement of the Tribunal would not apply to the rule of Article 27. For the States parties to the 1954 Convention, Article 27 is a thing of the past. However, not all States are party to this instrument, nor is the Convention part of customary law. For non-party States the rule of Article 27 subsists, if not as treaty law, then as customary law. And fortunately, as we shall see, history has not stopped there. Both Protocols of 1977 make provision for the protection of cultural objects: Protocol I, applicable in international armed conflicts, in fairly extensive fashion, and Protocol II, applicable in specified internal armed conflicts, in somewhat briefer terms. We encounter cultural objects in the section of Protocol I which deals with the general protection of civilian populations against the effects of hostilities, 8

9

Art. 5 provides that: In bombardments by naval forces all the necessary measures must be taken by the commander to spare as far as possible sacred edifices, buildings used for artistic, scientific, or charitable purposes, historic monuments, hospitals, and places where the sick or wounded are collected, on the understanding that they are not used at the same time for military purposes. It is the duty of the inhabitants to indicate such monuments, edifices, or places by visible signs, which shall consist of large, stiff rectangular panels divided diagonally into two coloured triangular portions, the upper portion black, the lower portion white. The International Military Tribunal for the trial of the major war criminals of the European Axis whose offences had no particular geographical location, Nuremberg, Judgment of 30 September 1946, section on “The Law Relating to War Crimes and Crimes Against Humanity”: The rules of land warfare expressed in the [Hague Convention of 1907] undoubtedly represented an advance over existing international law at the time of their adoption. But the convention expressly stated that it was an attempt “to revise the general laws and customs of war,” which it thus recognized to be then existing, but by 1939 these rules laid down in the convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6(b) of the Charter [of the Tribunal]. See L. Friedman, The Law of War – A Documentary History, vol. II (1972) 922 at pp. 960-61. The quoted paragraph is also reprinted in Roberts & Guelff, op cit. note 1 at p. 178.

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i.e., the part of battlefield law that in 1899 fell under the heading of siege and bombardment. “General protection” achieves two things. It categorically prohibits attacks on civilians and civilian objects, and it requires parties in attacking military objectives to spare civilians and civilian objects as much as possible. Protocol I elaborates the obligation to “spare as much as possible” into a number of detailed rules. Yet they cannot remove the fact that military operations may legitimately entail suffering of civilians or damage to civilian objects. One article in the section of Protocol I on general protection of civilian populations deals with the protection of cultural objects. Article 53 prohibits committing “any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples.” This prohibition, which binds the parties on all sides to the conflict, is a good deal more stringent than the admonition of 1899/1907 to spare certain buildings “as far as possible”. Yet it is balanced by the prohibition “to use such objects in support of the military effort.” The Protocol unfortunately leaves the term “military effort” undefined and parties to an armed conflict may be inclined to construe it to their advantage. The records of the conference show that Article 53 is designed to accord these cultural objects and places of worship a level of protection higher than the general protection accorded to the generality of civilian objects. For a majority at the conference, this “special” protection was meant to remain restricted to the class of historic monuments, works of art and places of worship that in view of their recognized importance could actually be said to belong to the cultural or spiritual heritage of peoples. Less outstanding cultural objects would be accorded no more protection than other civilian objects. A minority refused to accept, however, that this differentiation in protection would apply to places of worship as well. Both the Holy See and delegates of Moslem States argued that every temple, church, synagogue or mosque, no matter its size or quality, was equally entitled to the special protection of Article 53. The matter remained unresolved, and it seems likely that both groups will continue to read Article 53 in either one’s preferred sense. 10

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Art. 53 provides as follows: Without prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it is prohibited: (a) to commit any acts of hostility directed against the historic monuments, works of art of places of worship which constitute the cultural or spiritual heritage of peoples; (b) to use such objects in support of the military effort; (c) to make such objects the object of reprisals. For the drafting history of Art. 53, see H. S. Levie, Protection of War Victims: Protocol I to the 1949 Geneva Conventions, vol. 3 (1980) pp. 208-226.

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Interestingly, places of worship have also found a place in Article 52 of Protocol I. One rule in this core provision on “general protection” of civilian objects is that an object may lose its protection as a civilian object and become a military objective when it is used “to make an effective contribution to military action.” In concrete cases, doubt may arise as to whether an object that belongs to a class of objects that are “normally dedicated to civilian purposes” is actually used for military purposes. In case of such doubt the object must “be presumed not to be so used.” The Article provides examples of objects falling under this “rule of doubt”, and places of worship are actually the first example. There can be no doubt that the phrase here is meant to encompass all of these objects, from magnificent examples like St. Paul’s Cathedral or the Notre Dame to the modest village mosque or chapel, and whether old, new or under repair. A select group of cultural objects and places of worship figure in Article 85, on repression of breaches. Under its terms it will be a “grave breach” to attack historic monuments, works of art or places of worship that are clearly recognized as such and that are the object of specially arranged protection, for example (the Article adds), within the framework of a competent international organization. The Article stops just short of expressly mentioning UNESCO as the competent international organization of choice. 12

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Art. 52 provides the following: 1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2. 2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. 3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used. Art. 85, para. 4, provides in relevant part: In addition to the grave breaches defined in the preceding paragraphs and in the Conventions, the following shall be regarded as grave breaches of this Protocol, when committed wilfully and in violation of the Conventions or the Protocol: … (d) making the clearly-recognized historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement, for example, within the framework of a competent international organization, the object of attack, causing as a result extensive destruction thereof, where there is no evidence of the violation by the adverse Party of Article 53, subparagraph (b), and when such historic monuments, works of art and places of worship are not located in the immediate proximity of military objectives;…

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Protocol I does not reiterate the prescription of Article 27 of the 1899 Hague Regulations that objects qualifying for protection must be marked and the enemy informed of the sign chosen for that purpose. However, given the fact that, as noted earlier, the Hague Regulations are deemed to belong to customary law, this rule arguably continues to apply as well. An interesting question is whether these rules on marking and providing information also apply to internal armed conflict. Article 16 of Protocol II, which deals with the protection of cultural objects and places of worship, repeats verbatim most of the substantive wording of Article 53 of Protocol I. Yet when it comes to compliance, Protocol II is almost completely silent. Even assuming that the substance of the Hague Regulations of 1899 was deemed to apply as customary law in internal armed conflict, it seems extremely unlikely that secondary rules such as the ones on marking and informing could have acquired the force of customary law in relations between a government and the armed opposition groups confronting it. Nor am I at all sure to what extent even the primary rules on the protection of cultural objects in the Protocols of 1977 are part and parcel of customary law. To the extent that no higher level of protection is envisaged than the general protection accorded the generality of civilian objects, these rules may well be deemed to belong to customary law. I do hesitate, however, concerning the claim that Article 53 of Protocol I and Article 16 of Protocol II provide special protection for important cultural objects. The claimed effect of these rules is to raise the protection of these objects to a level close to the treaty regime provided by the Convention of 1954. Since I doubt that the rules on special protection in this Convention have become part of customary law, I am equally sceptical about the suggestion that the comparable rules in the Protocols would enjoy this status. To conclude my presentation, I add three remarks. The first concerns the question of whether, as the military initially feared, the insertion of the word “humanitarian” in the phrase “law of war” has led to a shift in focus, away from the brutality of war and with greater focus of protection. To answer this question, let us take a look at the practice of the International Criminal Tribunal for the Former Yugoslavia. The Tribunal has jurisdiction over “serious violations of international humanitarian law”, and these include violations of the “laws or customs of war.” In point of fact, although damage to objects such as mosques and churches is included in numerous indictments, the focus of the Tribunal in the vast majority of cases is primarily on the deaths and suffering inflicted on civil14 15

The only provision on compliance in Protocol II is in Art. 19: “This Protocol shall be disseminated as widely as possible.” Art. 1 of the ICTY Statute: “The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute.”

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ian populations. The cases against Pavle Strugar et al. arising out of the shelling of the Old Town of Dubrovnic on 6 December 1991 provide an early outstanding exception to this tendency. Vice-Admiral Miodrag Jokić, one of the commanders held responsible for this bombardment, on 23 August 2003 entered into a plea agreement that included three violations of the laws or customs of war: devastation not justified by military necessity, unlawful attack on civilian objects, and destruction or wilful damage done to institutions dedicated to religion, charity, education, the arts and sciences, historic monuments and works of art and science (Counts 4-6). The Trial Chamber notes in its Sentencing Judgement of 18 March 2004 that Jokić had been aware of the Old Town’s status as a protected site pursuant to the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage, and that a number of buildings in the Old Town were marked with the symbols of the 1954 Hague Convention (para. 23). The Trial Chamber also notes that as a result of the shelling, many protected buildings were destroyed or damaged (para. 27). It concludes from its survey of the facts and the law that: Since it is a serious violation of international humanitarian law to attack civilian buildings, it is a crime of even greater seriousness to direct an attack on an especially protected site, such as the Old Town, constituted of civilian buildings and resulting in extensive destruction within the site. Moreover, the attack on the Old Town was particularly destructive. Damage was caused to more than 100 buildings, including various segments of the Old Town’s walls, ranging from complete destruction to damage to non-structural parts. The unlawful attack on the Old Town must therefore be viewed as especially wrongful conduct [para. 53].

Yet, a striking fact like the destruction of the Mostar bridge remains to this day unpunished. The same applies with even greater force to an event like the destruction of the Buddhas of Bamiyan in Afghanistan, objects not under any specially agreed protection or jurisdictional powers yet of equally high cultural value. On 12 March 2001, UNESCO’s Director-General Koïchiro Matsuura had to express his distress at this shocking event, strikingly, just one day before he 16 17

The destruction figures in para. 116 of the Indictment against Jadranko Padric et al., signed on 4 March 2004 and unsealed on 2 April 2004. On this event, see Heleanor Feltham, Open Museum Journal, vol. 4; see also P. Ashwara Bhat, “Protection of Cultural Property under International Humanitarian Law: Some Emerging Trends”, The Journal of International Humanitarian and Refugee Law (2001) pp. 47-71. This author lists as the most recent destruction that of “the colossal images of Buddha of Bamiyan in Afghanistan during February and March 2001. This occurred in a non-international armed conflict as a measure of fanatic subjugation and as a means of drawing the attention of the international community for recognition and economic assistance.” (p. 49) Although Afghanistan was not a party

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could welcome, on 13 March 2001, the Indictment of 22 February 2001 against Pavle Strugar et al. in the Dubrovnik cases. My second remark is again a question: has the introduction into the Protocols of 1977 of rules on protection of cultural objects brought these rules into the central core of international humanitarian law? On this point, I note that the Plan of Action of the International Red Cross and Red Crescent Movement for the years 2000-2003 demanded that in the conduct of hostilities, every effort be made “to protect civilian objects including cultural property [and] places of worship.” Again, the Declaration adopted by the 28th International Red Cross and Red Crescent Conference in December 2003 even more emphatically calls on all parties to armed conflicts “to take all feasible measures to prevent pillage of cultural property and places of worship and acts of hostility against such property not used for military purposes.” It continues: We call upon all parties to an armed conflict to make all efforts to reduce incidental and prevent deliberate injury, death and suffering of civilian populations. The principle of distinction between the civilian population and combatants and between civilian objects and military objectives, and the principle of proportionality in the conduct of hostilities must be upheld in all circumstances. We call upon all parties to an armed conflict to take all feasible precautionary measures to minimize incidental civilian casualties and damage. We urge all parties to an armed conflict to ensure special respect and protection of women and children in accordance with international humanitarian law. In addition, the cultural heritage of peoples should be protected. We call on all to the 1954 Convention, Ishwara Bhat holds the Taliban as the de facto rulers bound by customary law to respect cultural property (p. 70). As noted in the text above, I do not share this optimistic view on the existence of customary law in situations of internal armed conflict. 18

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27th International Conference of the Red Cross and Red Crescent, Geneva, 31 Oct. - 6 Nov. 1999, Plan of Action for the years 2000-2003: 1. All the parties to an armed conflict take effective measures to respect and ensure respect for international humanitarian law and to ensure, in particular, in accordance with their relevant obligations under international humanitarian law, that: (a) in the conduct of hostilities, every effort is made – in addition to the total ban on directing attacks against the civilian population as such or against civilians not taking a direct part in hostilities or against civilian objects – to spare the life, protect and respect the civilian population, with particular protective measures for women and girls, and groups with special vulnerabilities such as children, the elderly, persons with disabilities and displaced persons and to protect civilian objects including cultural property, places of worship and diplomatic facilities; … 28th International Conference of the Red Cross and Red Crescent, Geneva, 2-6 Dec. 2003: “Protecting Human Dignity” – Final Declaration, 6 Dec. 2003. Ibid.

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parties to an armed conflict to take all feasible measures to prevent pillage of cultural property and places of worship and acts of hostility against such property not used for military purposes, as well as to prevent adverse effects on the environment. We also call on States to comply fully with the provisions of international humanitarian law, in particular, the Fourth Geneva Convention in order to protect and assist civilians in occupied territories.

Clearly, therefore, although the protection of cultural objects for obvious reasons will never become a core activity of the Red Cross and Red Crescent world, it is not lost sight of either. My last point links up to the hope expressed in Resolution I of the Hague Conference of 1954 “that the competent organs of the United Nations should decide, in the event of military action being taken in implementation of the Charter, to ensure application of the provisions of the Convention by the armed forces taking part in such action.” To the extent practicable, this wish has been fulfilled with the promulgation and entry into force of the Secretary-General’s Bulletin on Observance by United Nations Forces of International Humanitarian Law, which contains a paragraph specifically dealing with the protection of cultural property. The Bulletin, which sets forth “fundamental principles and rules of international humanitarian law applicable to United Nations Forces conducting operations under United Nations command and control,” was promulgated on 6 August 1999, on the occasion of the Centennial of the First International Peace Conference, The Hague, 1899. The Bulletin entered into force (with binding force within the United Nations) on 12 August 1999. The relevant paragraph in Section 6 (Means and methods of combat) reads as follows: The United Nations force is prohibited from attacking monuments of art, architecture or history, archaeological sites, works of art, places of worship and museums and libraries which constitute the cultural or spiritual heritage of peoples. In its area of operation, the United Nations force shall not use such 21

Records of the Conference convened by UNESCO and held at The Hague from 21 April - 14 May 1954, published by the Government of the Netherlands (1961) p. 78. The resolution was the outcome of a debate that started out with a Greek proposal to include in Art. 18 a clause making the Convention binding on contracting States “taking part in collective action in compliance with a decision taken by the competent organs of the United Nations.” After the legal difficulties with this proposal had been brought out and the Secretariat had suggested that the Conference “could vote a resolution expressing the hope that the United Nations adopt the principles of the Convention,” the Greek proposal was withdrawn. A French draft resolution was subsequently adopted. As the French delegate pointed out: “in practice, the United Nations could not adhere to a Convention. It was, however, necessary that the provisions of the Convention for the protection of cultural property would apply in the event of combined military action by the United Nations. That was the object of the French resolution.”

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The fact that cultural objects and places of worship are included in the SecretaryGeneral’s Bulletin on Observance by United Nations Forces of International Humanitarian Law is noted with gratitude.

Chapter 19 Bombardment: From “Brussels 1874” to “Sarajevo 2003”*

It’s tempting to wonder how many of the inventions of the past century we might have been better off without. Take the aeroplane, for instance. It has transformed warfare from an event in which trained soldiers kill each other on distant battlefields to occasions when death is rained down indiscriminately on innocent civilians, while the professional fighters fly at great height in comparative safety.” – John Mortimer, Where There’s a Will (2003) ch. 28.

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Introduction

The nineteen seventies were a period of active lawmaking in the sphere of the international humanitarian law of armed conflict, starting out with expert conferences and ending with the adoption by a diplomatic conference, on 8 June 1977, of two Protocols additional to the Geneva Conventions of 1949. As a member of the Dutch delegation to these events I got to know Professor Igor Blishchenko, member of the delegation of the Union of Soviet Socialist Republics. Politically, we were on opposite sides of a fence, and in the course of the proceedings each of us must have expressed views the other disliked enormously. Apart from politics, we got to respect and like each other on the frequent occasions we met, be it in the conference rooms in Geneva or on the boulevard of San Remo, the venue of the informal intersessional meetings organized by the fledgling International Institute of Humanitarian Law. I therefore accepted with alacrity the invitation to contribute to the Liber Amicorum commemorating my ex-colleague and friend. Bombardment, the wartime activity chosen for this essay, has a long history behind it. An enormous distance separates the primitive artillery of the past from the current sophisticated launching contraptions. It is neither my compe* 1

To be published in J. Doria, H.-P. Gasser and Ch. Bassiouni (eds.), The Legal Regime of the ICC: Essays in honor of Professor Blishchenko (2007). Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I); Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II); text reprinted in Roberts & Guelff (eds.), Documents on the Laws of War, 3rd ed. (2000) pp. 419, 481.

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tence nor my purpose to write about the technical side of the matter. Nor will I deal with the important question, frequently discussed in relation to operations such as Operation Allied Force, whether such recourse to force is at all justifiable, be it under the Charter of the United Nations or, more generally, according to jus ad bellum. Rather, my focus will be on bombardment as a method of warfare. As exemplified by the above quote from Sir John Mortimer’s Where There’s a Will, bombing operations may be criticised for the manner they are carried out or for their presumed effects, in particular on the civilian population. That the actions may be appraised differently by different people may be evident from episodes such as the targeting, in the course of the Kosovo campaign, of all the bridges in Serbia, or the bombardment of Falluja during the recent, second Iraq war in an operation I heard referred to, in a variant of General Sherman’s ill-famed sound bite of the American Civil War, as an attempt to destroy the city in order to liberate it. My purpose is to try and discover the rules relating to bombardment as they have developed in the framework of jus in bello, i.e., the body of law that in the past was styled the law of war and that today, in softer tones, is usually referred to as the international humanitarian law of armed conflict. (I shall use the various terms intermittently or even the acronym IHL.) My search starts at “Brussels 1874”, as the first intergovernmental conference to broach the matter of bombardment. It stops at “Sarajevo 2003”, as the first occasion for an international criminal tribunal to hold a specific shelling and sniping campaign against the light of international humanitarian law and, indeed, condemn it as a crime of terror. Between these two events lie a series of conferences, notably, the Hague Peace Conferences of 1899 and 1907 and the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, 1974-1977. There also lies a much longer list of armed conflicts, with the First and Second World Wars (1914-1918, 1939-1945) as particularly noteworthy episodes. As we shall see, the aeroplane plays an important part in our story. Yet it had nothing to do with our two extreme points in time: the Brussels conference was held before the air arm started its ascendancy, and the weapons used against Sarajevo were a land army’s instruments such as howitzers, mortar and snipers’ rifles. 2 The Conference of Brussels, 1874 On the invitation of the Russian Government, delegates of fifteen European states gathered in Brussels on 27 July 1874 to examine a Russian draft text for an international agreement on the law of land warfare. After one month of deliberations, the conference on 27 August 1874 adopted two texts: a Final Protocol and 2

The 1999 NATO Kosovo bombing campaign.

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a Project of an International Declaration Concerning the Laws and Customs of War. Since the conference was not mandated to conclude a treaty, it could only transmit the Declaration of Brussels (as the text became known) to the delegates’ respective governments. With that, the matter came to a standstill: it would be a quarter of a century before the text was taken up as the basis of discussions on the law of war at the Hague Peace Conference of 1899. At the time of the Conference of Brussels, warfare was the business of “armies in the field”. Yet the armies were not always “in the field”: they often passed by or through towns, villages and other inhabited places. If a place was not defended, there was no use for bombardment and the ammunition could be spared for other occasions – a military logic that unfortunately was not always respected in practice. Of course, a fortified place was another matter: if it had to be captured, an artillery bombardment could greatly help preparing the final assault. The section on “sieges and bombardments” of the Declaration of Brussels reflects this state of affairs. As Article 15 has it: “Fortified places are alone liable to be besieged. Open towns, agglomerations of dwellings, or villages which are not defended can neither be attacked nor bombarded.” Article 16 requires the commander of a force attacking a fortified place to “do all in his power to warn the authorities” prior to commencing the bombardment; a weak obligation that does not even apply in the event that the operation qualifies as an assault. Article 17 calls for “all necessary steps” to spare a select group of buildings dedicated to culture and hospitals, but only “as far as possible” and “provided [the objects] are not being used at the time for military purposes.” Moreover, the defenders themselves are ordered to “indicate the presence of such buildings by distinctive and visible signs to be communicated to the enemy beforehand.”

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Text of Final Protocol and Declaration reprinted in Schindler & Toman (eds.), The Laws of Armed Conflicts, A Collection of Conventions, Resolutions and Other Documents, 4th ed. (2004) 21. On the drafting history of the Declaration, see J. de Breucker, “La Déclaration de Bruxelles de 1874 concernant les lois et coutumes de la guerre”, in 27 Chronique de Politique Étrangère (1974) p. 3; as he notes, the adoption by the Conference of rules on bombardment implied its recognition as a lawful method of warfare; at p. 59. This phrase is borrowed from the title of the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 22 August 1864, reprinted in Schindler & Toman, op. cit. note 3, at p. 365. Art. 16 provides that “if a town or fortress, agglomeration of dwellings, or village, is defended, the officer in command of an attacking force must, before commencing a bombardment, except in assault, do all in his power to warn the authorities.” Art. 17 reads as follows: In such cases all necessary steps must be taken to spare, as far as possible, buildings dedicated to art, science, or charitable purposes, hospitals, and places where the sick and wounded are collected provided they are not being used at the time for military purposes.

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In drafting these rules, the delegates at Brussels evidently had short-range battle situations in mind where, for instance, distinctive signs marking buildings in a place under siege might be expected to be visible to the enemy outside the city walls. Another striking feature of the rules is that while specified buildings are singled out for protection, not a word is spent on the inhabitants of a defended place and their homes. Even so, the mere fact that the Conference adopted rules on bombardment at all and specifically prohibited bombardment of undefended places reflects a conscious choice between two opposing extreme tendencies in thinking about war: tendencies that are at issue in all lawmaking and law enforcement efforts in the sphere of so-called “battlefield law”. By way of explanation, let us listen to the voice of Baron Jomini, Head of the Russian delegation. Addressing the plenary opening session of the Conference, he said: There exist very conflicting ideas about war. While some would wish to make it even more terrible in order that it might occur less frequently, others would prefer to turn it into a tournament between the regular armies, with the peoples as simple spectators.

In terms of this choice between “conflicting ideas about war”, the rules of 1874 imply that the inhabitants of an undefended place, although perhaps not just “simple spectators” of a tournament between the opposing armies, at least were saved the ordeal of bombardment. In contrast, the “peoples” in a place under siege were left exposed to the hardships of war. The outcome of the debate at the Conference of Brussels on the subject of artillery bombardment may thus be qualified as steering a middle course between Baron Jomini’s two extremes. 3 The Hague 1899, 1907, 1923 From 18 May to 29 July 1899, again on the initiative of the Russian Tsar, the International Peace Conference convened at The Hague to discuss, inter alia, the law of war. This time, the outcome was a treaty: the Conference adopted

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It is the duty of the besieged to indicate the presence of such buildings by distinctive and visible signs to be communicated to the enemy beforehand. I borrow the phrase from the title of the book by A. P. V. Rogers, Law on the Battlefield, 2nd ed. (2004). As quoted by Jean de Breucker, op. cit. note 3, at p. 7; my translation from the original French: “Il règne en effet des idées très contradictoires sur la guerre. Les uns voudraient la rendre plus terrible pour qu’elle soit plus rare, d’autres voudraient en faire un tournoi entre les armées régulières, avec les peuples pour simples spectateurs.” Apart from war, the Conference discussed disarmament and international arbitration. On the 1999 centennial of the Conference see F. Kalshoven (ed.), The Centennial of the First International Peace Conference; Reports and Conclusions (2000).

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a Convention on land warfare. As noted earlier, the annexed Regulations on land warfare largely confirmed the results of the Brussels Conference of 1874: the lapse of a quarter of a century had not led to different insights on matters such as treacherous killing v. ruses of war, occupation, or the position of resistance fighters. In particular, Rules 25-27 on bombardment (in Section II – Hostilities, Chapter I – Means of Injuring the Enemy, Sieges, and Bombardments) simply copy the provisions on bombardment in the Declaration of Brussels. However, a first sign of changes to come may be seen in the adoption by the Conference of a declaration by which contracting states agreed “to prohibit, for a term of five years, the launching of projectiles and explosives from balloons, or by other new methods of a similar nature.” While balloons already provided a platform for such launchings, the “other methods of a similar nature” referred to the airplanes which had made their first tentative flights and in future might perhaps play a similar role. Strikingly, the declaration, with its flat prohibition of aerial bombardment, was signed and ratified by all the important states of the time. Yet, as signified by its five-year period, the prohibition was tentative: the delegates at the Conference had not found agreement on a text that could be attached as a permanent rider to the rules on bombardment in the Regulations. By the time of the Second Hague Peace Conference, 15 June – 18 October 1907, aircraft had developed to a stage where the prospect of their use as a platform for the “launching of projectiles and explosives” already began to be more realistic. In consequence, although the Conference did adopt a Declaration identical to the one of 1899, this time “for a period extending to the close of the Third Peace Conference” (a conference that would never be convened), the fate of the new Declaration was very different than that of its predecessor: among the main European states Great Britain would be the only one to ratify it. It should be added that the delegates at the same time completed the language of the existing categorical prohibition on bombardment of undefended towns etc. with the clause “by whatever means”. This amendment effectively precludes the argument that the Hague Peace Conference of 1907 had been thinking of nothing but ground artillery and that the rule it was reaffirming therefore could not be deemed to apply to aerial bombardment as well. While the argument may strike the reader as detestable anyway, it is a popular line of reasoning with governments or military staffs that wish to escape from the strictures of 10

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The official title is: Convention with Respect to the Laws and Customs of War on Land, and Regulations Respecting the Laws and Customs of War on Land. Text reprinted in Schindler & Toman, op. cit. note 3, p. 55. Text reprinted in Schindler & Toman, op. cit. note 3, p. 309; list of signatures, ratifications and accessions, p. 312. Text of declaration reprinted in Schindler & Toman, op. cit. note 3, p. 309; list of signatures, ratifications and accessions, p. 313.

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general rules that date from before the introduction of a new means or method of warfare. The delegates at the Conference of 1907 are therefore to be praised for their foresight in closing this escape route for the specific case of aerial bombardment. Another interesting product of the Conference of 1907 is the Hague Convention on naval bombardment. While its opening article copies the prohibition in the Hague Regulations on bombardment of undefended places, Article 2 exempts from this prohibition a series of military works, establishments and other objects that “could be utilized for the needs of the hostile fleet or army” and therefore may be bombarded. The rule reflects the plain fact that while undefended coastal places might be beyond the grasp of the land army, they could well lie within the reach of the naval forces. The point is that here, for the first time, the notion of “military objective” makes its appearance in the discussion about limits to bombardment and, with that, about the middle course between Baron Jomini’s “conflicting ideas about war”. Meanwhile, developments in the air were going fast. Bombs were dropped from the air in 1911, in a war between Turkey and Italy. And a few months before the end of the First World War, both English and German aeroplanes dropped bombs on enemy military objectives. In our eyes, these events were no more than primitive tryouts. Yet the prospect of significant aerial attacks on the enemy hinterland and, with that, on the enemy civilian population was growing more realistic. Indeed, shortly after the War, high-ranking military commanders in more than one country (notably, the Soviet Marshal Tuchatsjevski, the French General Foch and his Italian colleague Douhet) could be heard speaking with enthusiasm about the prospect of devastating attacks on the enemy’s capacity and will to fight, not least through attacks upon the morale of the population. In the perception of these leaders, war conducted thus would no longer be a long drawn-out 13 14

Hague Convention (IX) Concerning Bombardment by Naval Forces in Time of War. Text reprinted in Schindler & Toman, op. cit. note 3, p. 1079. The full text of Art. 2 reads as follows: Military works, military or naval establishments, depots of arms or war matériel, workshops or plant which could be utilized for the needs of the hostile fleet or army, and the ships of war in the harbour, are not, however, included in this prohibition. The commander of a naval force may destroy them with artillery, after a summons followed by a reasonable time of waiting, if all other means are impossible, and when the local authorities have not themselves destroyed them within the time fixed. He incurs no responsibility for any unavoidable damage which may be caused by a bombardment under such circumstances. If for military reasons immediate action is necessary, and no delay can be allowed the enemy, it is understood that the prohibition to bombard the undefended town holds good, as in the case given in paragraph l, and that the commander shall take all due measures in order that the town may suffer as little harm as possible.

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struggle between opposing armies but a swift, terrible all-out struggle between nations. The prospect of using the air arm as an instrument to terrorize the enemy civilian population was received with less enthusiasm in governmental and other quarters. Discussions were opened with a view to finding agreement on rules for the waging of air warfare that would temper the high expectations of the generals and air marshals. When these negotiations failed, the Washington Conference of 1922 on the Limitation of Armaments set up a Commission of Jurists charged with devising a set of rules, inter alia, on air warfare. The text produced by the Commission, usually referred to as the 1923 Hague Rules on Air Warfare, deals in detail with aerial bombardment. Opening the section on bombardment, Article 22 states that: Any air bombardment for the purpose of terrorising the civil population or destroying or damaging private property without enemy character or injuring non-combatants, is forbidden.

This was both a direct slap in the face of the air marshals as well as an important declaration of principle. Article 24(1) establishes another equally important principle: An air bombardment is legitimate only when it is directed against a military objective, i.e. an objective whereof the total or partial destruction would constitute an obvious military advantage for the belligerent.

Leaving the further specifics of Article 24 on one side, I note that the rules on bombardment in the Hague Rules of 1923 unmistakably represent a move away 15

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The episode is referred to in this author’s “Arms, Armaments and International Law”, 191 Recueil des Cours (1985-II) p. 187, at p. 219. The military leaders quoted above, in the words of Baron Jomini, evidently looked forward to wars that would be made even more terrible in order that they might occur less frequently. The full title, reflecting also the other items on the agenda of the Commission, is: Hague Rules Concerning the Control of Wireless Telegraphy in Time of War and Air Warfare. For text, see Schindler & Toman, op. cit. note 3, p. 315. Para. 2 supplements this abstract definition with an enumeration of the objects falling under the definition: “Such bombardment is legitimate only when directed exclusively against the following objectives: military forces, military works, military establishments or depots, manufacturing plants constituting important and wellknown centres for the production of arms, ammunition or characterized military supplies, lines of communication or of transport which are used for military purposes.” The next paragraphs of Art. 24 deal with the specificities of aerial bombardment targeting objects in inhabited places that are situated either at some remove from ongoing ground operations or close to such activity.

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from the drastic ideas of the air marshals and back to the model of the middle course. Unfortunately, although widely regarded as an authoritative statement of the law on air warfare, the Rules were never adopted as a treaty. An even more frontal attack on the ideas of the air marshals was undertaken some time later, at the League of Nations Conference for the Reduction and Limitation of Armaments, held at Geneva from 1932 to 1934. The Conference distinguished quantitative and qualitative disarmament (by numbers and by character, respectively). Under qualitative disarmament it decided to examine the range of land, sea and air armaments with a view to selecting those weapons that would be, inter alia, “most threatening to civilians.” Not surprisingly, the air arm came up for close scrutiny under this heading, and proposals were drawn up to shield civilians from the harm and demoralising effect of air attacks against centres of civilian population. If adopted, these proposals would have resulted in a virtual ban on long-distance aerial bombardment. However, the Conference petered out in 1934. With that, the proposals relating to the air arm likewise vanished into thin air. 4 The Second World War By the time of the Second World War, the internationally agreed provisions designed to limit aerial bombardment as a method of warfare were still the same that had been in force at the time of the first World War, i.e., the rules found in the Declaration of Brussels as reaffirmed and reinforced in 1899 and 1907 at the Hague Peace Conferences. Implementation of the more recent, non-binding rules of the Hague Rules of 1923 would remain dependent on the goodwill of the belligerent parties. Official statements prompted by the events of the Spanish Civil War and delivered shortly before the outbreak of the Second World War aimed to reaffirm the validity of the rules in force. Thus, a resolution unanimously adopted on 30 September 1938 by the Assembly of the League of Nations, recognising the horror public opinion had repeatedly expressed at the bombing of civilian populations and the illegality and military uselessness of this mode of conducting war, emphasised that air warfare urgently needed to be made the subject of special regulation. Unfortunately, time was running out and serious efforts at creating new law in this area could no longer be expected. Accordingly, when President 18

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On the Disarmament Conference, see, by this author, Belligerent Reprisals (1971, reprinted 2005) p. 90, and “Arms, Armaments and International Law”, op. cit. note 15, pp. 218, 308. The relevant parts of the Resolution read as follows: Considering that on numerous occasions public opinion has expressed through the most authoritative channels its horror of the bombing of civilian populations;

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Roosevelt on 1 September 1939 addressed an appeal to the belligerent parties, he could only urge them to affirm that they would desist from aerial bombardment of civilian populations and unfortified cities, on the basis of reciprocity. This pledge they all gave – on the basis of reciprocity. Practice during the Second World War presents a mixed picture. Innumerable bombing actions were carried out against perfectly lawful targets. At the same

20

Considering that this practice, for which there is no military necessity and which, as experience shows, only causes needless suffering, is condemned under the recognized principles of international law; Considering further that, though this principle ought to be respected by all States and does not require further reaffirmation, it urgently needs to be made the subject of regulations specially adapted to air warfare and taking account of the lessons of experience; Considering that the solution of this problem, which is of concern to all States, whether Members of the League of Nations or not, calls for technical investigation and thorough consideration; Considering that the Bureau of the Conference for the Reduction and Limitation of Armaments is to meet in the near future and that it is for the Bureau to consider practical means of undertaking the necessary work under conditions most likely to lead to as general an agreement as possible: I. Recognizes the following principles as a necessary basis for any subsequent regulations: 1) The intentional bombing of civilian populations is illegal; 2) Objectives aimed at from the air must be legitimate military objectives and must be identifiable; 3) Any attack on legitimate military objectives must be carried out in such a way that civilian populations in the neighbourhood are not bombed through negligence; [etc.] Appeal of President Franklin D. Roosevelt on Aerial Bombardment of Civilian Populations, addressed to the Governments of France, Germany, Italy, Poland and His Britannic Majesty, 1 Sept. 1939: The ruthless bombing from the air of civilians in unfortified centers of population during the course of the hostilities which have raged in various quarters of the earth during the past few years, which has resulted in the maiming and in the death of thousands of defenseless men, women, and children, has sickened the hearts of every civilized man and woman, and has profoundly shocked the conscience of humanity. If resort is had to this form of inhuman barbarism during the period of the tragic conflagration with which the world is now confronted, hundreds of thousands of innocent human beings who have no responsibility for, and who are not even remotely participating in, the hostilities which have now broken out, will lose their lives. I am therefore addressing this urgent appeal to every government which may be engaged in hostilities publicly to affirm its determination that its armed forces shall in no event, and under no circumstances, undertake the bombardment from the air of civilian populations or of unfortified cities, upon the understanding that these same rules of warfare will be scrupulously observed by all of their opponents. I request an immediate reply.

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time, the civilian population was frequently targeted as well, at times in an attempt to break its morale and, with that, the enemy will to fight. In effect, one of the first German bombing actions, the bombardment of London in August 1940, had the stated purpose of “bombing England out of the war”. Yet, awareness of the illegality of plain terror bombardment persisted, and throughout the war these acts continued to be denounced as unlawful by the victims and equally loudly claimed to be justified as reprisals by the attackers. 5 The Protocols of 1977 The law governing bombardment had barely survived the Second World War and in effect was in dire need of resuscitation. A first opportunity to do this arose with the Nuremberg Tribunal. Its Charter lists under the heading of war crimes the “wanton destruction of cities, towns, or villages, or devastation not justified by military necessity” and, under crimes against humanity, “inhumane acts committed against any civilian population”. These formulations probably covered acts such as the bombing campaign against London. The opportunity was not taken up, however: none of the political and military defendants before the Tribunal were charged with the bombardment of civilian populations. This silence may be interpreted as reflecting awareness on the part of the Prosecutors that since the Allied air forces had behaved no better, non-prosecution of these crimes was to be preferred over the defendants raising the argument of tu quoque at trial. 21 22

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For a discussion of this episode, see Belligerent Reprisals, op. cit. note 18, pp. 161-178. International Military Tribunal established by virtue of the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, London, 8 Aug. 1945. Text of the London Agreement and the annexed Charter of the Tribunal reprinted in Schindler & Toman, op. cit. note 3, p. 1253. The Charter defines the war crimes that would fall under the jurisdiction of the Tribunal as: violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;” and crimes against humanity as “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. [Art. 6(2b, c).] For an in-depth analysis of the various manifestations of tu quoque, see Sienho Yee, “The Tu Quoque Argument as a Defence to International Crimes, Prosecution or Punishment”, 3 Chinese Journal of International Law (2004) p. 87.

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General Protection of the Civilian Population

It would be another thirty years before the law on bombardment was actually resurrected and, in the process, significantly reinforced. The occasion was the conference of 1974-1977 that negotiated and ultimately adopted the two Additional Protocols. Protocol I in particular provides detailed rules on bombardment, although not under this heading or in the section on methods and means of warfare; nor, indeed, in so many words: one exception apart, the term “bombardment” does not figure in the Protocol. Rather, the rules are found under the heading of “Civilian Population” (Part IV) and notably in Section I on “General Protection against Effects of Hostilities”. The different presentation marks a significant shift in approach as well: while civilians hardly figured in the old rules, the protection of civilians and civilian objects is an important feature of the new provisions. I note the following highlights: – it is prohibited to make the civilian population as such, or individual civilians, the object of attack. – as regards objects, attacks are permitted solely against military objectives, these are defined as objects which “by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage.” – in attacking military objectives, everything feasible shall be done to avoid, or at any rate to minimise, injury to civilians and damage to civilian objects (socalled collateral damage). An attack that fails to do this is an indiscriminate attack. Specifically, the limit of permissible collateral damage is overstepped 25

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Supra, text at note 1. The official title of the conference was Diplomatic Conference for the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974-1977. The exception is in Art. 51(5a) that lists among indiscriminate attacks, “an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects.” Art. 51(2). Attacks aiming primarily to spread terror among the civilian population are treated separately in the next section. Art. 52(2): “Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” Art. 51(4) defines indiscriminate attacks as: “(a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat which cannot be limited as required by this Protocol.”

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Chapter 19 when an attack may be expected to cause losses that could be deemed “excessive in relation to the concrete and direct military advantage anticipated.”

These substantive rules are completed with provisions on implementation or “precautionary measures”. Addressing the attacker, Article 57 provides that “[i]n the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.” This statement of principle is followed by a detailed exposition of the precautions to be taken by those who plan, decide or carry out an attack. Tackling the issue from the other side, the much shorter Article 58 specifies the necessary and feasible precautions that parties to the conflict must take in order to “protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations.” Bombardment as a method of warfare is as common in situations of internal armed conflict as it is in international armed conflicts. Yet, Protocol II, applicable in situations of internal armed conflict that meet the conditions set forth in Article 1(1), has a great deal less to say about the issue. Article 13(1) states the general principle of protection of civilians: “The civilian population and civilians shall enjoy general protection against the dangers arising from hostilities.” Paragraph 2 repeats verbatim the text of Article 51(2) of Protocol I, including the phrase that “[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.” However, Protocol II provides no rules on the protection of civilian objects, nor does it limit attacks Para. 5 gives two examples of attacks that must be considered as indiscriminate: “(a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilian objects, and (b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” 30 31

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Art. 51(5). Protocol II is applicable in conflicts that “take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” At the Diplomatic Conference, Part IV of Protocol II, entitled “Civilian Population”, had long expanded in line with its twin Part in Protocol I. As noted by the delegate of Norway, civilian populations should be given the same protection irrespective of the nature of the conflict, and less detailed provisions in Protocol II than those in Protocol I would mean less protection of civilians in cases of non-international armed conflicts. He “strongly urged Governments favouring such a course to reconsider their position.” Meeting of Committee III, 29 March 1974, CDDH/III/SR.9, Off. Records Vol. XIV, 71. In the end, the “Governments favouring such a course” won, and Part IV of Protocol II was stripped to the bare essentials.

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to military objectives. This reflects the fear of the majority at the Conference that by introducing a definition of “military objective” in the context of internal armed conflict the impression might be created that attacks by armed opposition groups on objects meeting this definition are legitimate acts of warfare (rather than acts of rebellion, treason or terrorism). Even so, the few rules on protection of the civilian population in Protocol II signify a more radical change in the law relating to internal armed conflict than was achieved in regard to international armed conflicts: after all, rules governing hostilities have been a feature of the law relating to international armed conflict since 1899, whereas such rules were almost completely absent from the preProtocol II law governing internal armed conflict. The silence of Protocol II on protection of civilian objects and the lack of a definition of “military objective” loses some of its sting when it is realized that in practice, parties to internal armed conflicts are as much aware as are their counterparts in international armed conflicts of the distinction between a school that harbours four-to-six-year-olds and a military barracks, or, in more general terms, between civilian objects and military objectives. Indeed, in internal armed conflicts as well, civilian objects cannot be much else but objects that are not military objectives, and the latter objects are bound to be something quite similar to the objects defined in Article 52(2) of Protocol I. The question remains whether parties to internal conflicts are prepared to act according to their insights – but this question extends as much to the situation of international armed conflict as it does to internal armed conflict.

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The term was introduced by Liesbeth Zegveld in her book on The Accountability of Armed Opposition Groups in International Law (2002). In spite of this reluctance to deal with the notions of “civilian object” and “military objective”, Arts. 14-16 of Protocol II extend protection from attack to certain specified objects. Art. 15 protects specified works and installations containing dangerous forces “even where these objects are military objections…” – the sole place where the Conference overlooked the “m” word! The only exception was Art. 19 of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, which made those of its provisions “which relate to respect for cultural property” applicable in internal armed conflict as well. For text of the Convention, see Roberts & Guelff, op. cit. note 1, p. 371. The Amended Protocol on Prohibitions or Restrictions on the Use of Mines, BoobyTraps and Other Devices (1996 Amended Protocol II) annexed to the 1980 UN Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, is applicable in all situations of armed conflict (Art. 1(2)), and Art. 2(6) defines “military objective” in literally the same terms as are used in Protocol I. For text of the Convention, see Roberts & Guelff, op. cit. note 1, 515; 1996 Amended Protocol II, at p. 536.

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Attacks with the Primary Purpose of Spreading Terror among the Civilian Population

Both Article 51(2) of Protocol I and Article 13(2) of Protocol II contain a second sentence prohibiting “[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population.” It may be recalled that the lawyers who drew up the 1923 Hague Rules on Air Warfare already included a specific prohibition of “air bombardment for the purpose of terrorising the civil population.” Even more strikingly, the Disarmament Conference of 1932-1934 had placed the air arm in the category of weapons most threatening to civilians and therefore deserving to be submitted to stringent restrictions. From this historical perspective, the present prohibition in the Protocols of acts or threats of violence with the primary purpose of spreading terror among the civilian population stands in a long tradition. Yet, the scope of the new prohibition is significantly broader than its predecessor of 1923. Given its importance in the context of bombardment, the new phrase is discussed here in some detail. It falls apart in three parts: “acts of violence”, “threats”, and the “primary purpose to spread terror among the civilian population.” Article 49 of Protocol I defines attacks as “acts of violence against the adversary, whether in offence or in defence,” and it provides that its rules relating to attack apply to “any land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land.” Hence, the prohibition in Article 51(2) of “acts of violence” may be taken to apply to attacks with the said primary purpose, whether in the shape of land, aerial or naval bombardment, the launching of missiles, mortar fire or sniping. Similarly, “threats of violence” may be explained as threats of attacks. This is one of the rare occasions where the element of threat has been added to a particular provision: the other two are Article 40 (Quarter) and Article 75 (Fundamental guarantees). In all three cases, the threat signifies a communication to the adverse party and emphasises the psychological impact that such 37 38

39

Art. 49(1, 3). Art. 40, prohibiting “to order that there shall be no survivors, to threaten an adversary therewith or to conduct hostilities on this basis,” reaffirms and elucidates the rule in Article 23(d) of the Hague Regulations prohibiting “to declare that no quarter will be given.” As Jean de Preux writes in his comment on Art. 40: “Strictly speaking, the text refers to the intention, the threat or pressure with a view to provoking an immediate surrender, or to terrorizing the adversary …” ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987) para. 1591. Art. 75 provides a code of humane treatment for “persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the [1949 Geneva] Conventions or under this Protocol.” Its list of acts such as murder, torture and the taking of hostages that “are and shall remain prohibited at any time and in any place whatsoever” takes its inspiration from common Article 3 of

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a declaration may have – and may be intended to have – on the morale of the enemy and, in the case of Article 51(2) specifically on (part of ) its civilian population. There remains the requirement of a “primary purpose to spread terror among the civilian population.” Obviously, any attack, or threat of attack, on a city is bound to spread fear, panic, perhaps even anger. The phrase in Article 51(2) does not serve to confirm these plain truths. Rather, it signifies that to the drafters, the specific intention to spread terror was even more crucial than the level of fear actually inspired. How to single out the “primary purpose” among the multiple purposes that may be pursued with a single act of violence? What, for instance, of an indiscriminate attack on a city that actually spreads terror among the civilian population: was terror the effect the attacker wished to achieve in the first place or, rather, an unwanted side effect of a military operation carried out for totally different reasons? The answer to this question may well depend on where one’s sympathies lie. Apart from that, the mere fact that terror was in effect induced cannot justify the conclusion that terror was the primary purpose of an attack. This conclusion may only be drawn on the basis of reliable evidence – in times of armed conflict, a rare commodity. To add yet another complication: Article 57(2c) of Protocol I requires a party planning an attack which “may affect the civilian population” to give advance warning, “unless circumstances do not permit.” An attack on a military objective located within a city may well “affect the civilian population” and therefore require advance warning. What if the warning by itself induces terror even before the attack has begun: does it not risk being interpreted as a threat of violence with terror as its primary purpose? Indeed, one may wonder whether the requirement of advance warning does not run counter to the prohibition of “threats of attack” in the second part of Article 51(2). Waldemar Solf denies this, arguing that the latter phrase “prohibits only actual or threatened attacks directed against the civilian population.” Since warning is required only in view of “possible collateral damage resulting from

40

the Conventions. However, whereas Art. 3 only lists the acts, Art. 75 adds as a closing phrase: “threats to commit any of the foregoing acts.” The draft text the ICRC submitted to the Conference already refers to acts “intended to spread terror among the civilian population.” Art. 46 of Draft Protocol I, I Official Records, Part Three, 16: CDDH/1. In an attempt to explain the proposal, the representative of the ICRC stated in Committee III that “the words ‘methods intended to spread terror’ had been included to express an intention.” (!) CDDH/III/SR.5, 14 March 1974, 14 Off. Rec. 35. The text led to some considerable debate in Committee III, with the defenders of the freedom of expression on one side and those rejecting the use of propaganda as a means of spreading terror among the civilian population on the other.

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attacks directed against military objectives, there is no inconsistency between the two provisions.” The question is whether his view is correct: does the phrase in the second part of Article 51(2) really exclude attacks directed against military objectives? The definition of “attack” in Article 49 includes attacks against military objectives as well, and the definition of military objectives in Article 52(2) actually is preceded by the phrase that “[a]ttacks shall be limited strictly to military objectives.” On the other hand, interpreting the phrase strictly within the confines of Article 51(2), it might be argued that since the term “attacks” in the first sentence of the paragraph can only mean attacks against civilians, the “attacks and threats of attack” of the second sentence must be regarded as similarly limited to acts against civilians. Neither of these textual arguments is compelling. The drafting history of Article 51(2) is equally inconclusive: participants at the discussions in the Conference expressed views that may be read either way. Only one speaker – in effect, the Head of the American delegation, George Aldrich – explicitly stated “that attacks on the civilian population intended to spread terror should be prohibited”, adding that “the prohibition of the free flow of information was unacceptable.” 41

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Solf recognizes that “t[he] subjective nature of the operative element of intent may … afford a basis for propaganda allegations that warnings of impending attacks against military objectives intended to provide civilians with an opportunity to evacuate the vicinity of military objectives or to take shelter were in fact threats intended to induce terror.” Bothe, Partsch & Solf, New Rules for Victims of Armed Conflicts (1982), 300-301: para. 2.3.2. Supra, note 37. Meeting of Committee III, 19 March 1974, CDDH/III/SR./8, 14 Off. Rec.

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Mr. Cameron (Australia): “The efficacy of the proposal to replace the word ‘methods’ in paragraph 1 by the word ‘attacks’ would depend entirely on the definition to be given to the word ‘attack’. Reference to neither term could adequately limit what some regarded as permissible and others as reprehensible.” Mr. Ahmadi (Iran): “although objections had been raised to the phrase ‘methods intended to spread terror’ in paragraph 1, methods of war undoubtedly did spread terror among the civilian population, and those used exclusively or mainly for that purpose should be prohibited.” Sir David Hughes-Morgan (UK) “was opposed to the amendments in CDDH/ III/38 and CDDH/III/51 [supra note 44] ‘which referred to ‘acts capable of spreading terror’ without limiting the form such acts might take. He preferred the word ‘attacks’ suggested in document CDDH/III/27 [supra note 41] to the word ‘methods’ proposed by the ICRC.” Mr. Girard (France) “said that in traditional wars attacks could not fail to spread terror among the civilian population: what should be prohibited in paragraph 1 was the intention to do so.” Ibid.; my emphasis.

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In sum, our discussion of the second part of Article 51(2) yields more questions than firm answers. Notably, both the very notion of “primary” purpose and the relation of the provision to the matter of attacks on military objectives remain undetermined. On the latter point, I find it hard to accept that attacks or threats of attacks on military objectives in a city, town or village should remain outside the scope of the provision even if they had the primary purpose of spreading terror among the civilian population. Aldrich and Solf may have assumed that (threatened) attacks on military objectives will always have another, truly military, primary purpose. I am afraid that this assumption is not borne out by practice. A few words about the identical clause in Article 13(2) of Protocol II. The point that comes to mind here is the guerrilla technique of attacking relatively minor targets with the expectation and, indeed, primary purpose of thereby achieving much wider results, for instance, through the spreading of terror among the civilian population. In the post-World War Two period, the discourse on this point was conducted in terms of “guerrilla or terrorist”, with the choice of words often determined by the side one was on: “Parties, of course, piously condemn their opponent’s resort to such ‘outrageous, shocking’ acts while cloaking their own conduct in euphemisms that deceive only those who wish to be deceived.” In contrast, lawyers and political scientists attempted to define the notions involved in more academic terms. Thomas Thornton defines terror as “a symbolic act designed to influence political behavior by extranormal means, entailing the use or threat of violence.” With “extranormal” he means to say that “terror lies beyond the norms of violent political agitation that are accepted by a given society.” Taking an act of sabotage against a presumed military objective as an example, he explains that “if the objective [of the act] is primarily the removal of a specific thing (or person) with a view to depriving the enemy of its usefulness, then the act is one of sabotage. If, on the other hand, the objective is symbolic, we are dealing with terror.” Although Thornton’s perspective was that of the political scientist, his construction happily coincides with my interpretation of the provision adopted in 1977: an attack on a military objective may or may not amount to an act of terror, and whether it is depends solely on its primary purpose. This conclusion is in harmony with practice in guerrilla-type internal armed conflict, where symbol45

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This appears to be the assumption in the Report of Committee III, Second Session, when it excludes “terror that is merely an incidental effect of acts of warfare which have another primary object and are in all other respects lawful.” Report of Committee III, Second Session; CDDH/215/Rev. I; 15 Off. Rec. 261. James Bond, The Rules of Riot, Internal Armed Conflict and the Law of War (1974) 84; quoted in this author’s “‘Guerrilla’ and ‘Terrorism’ in Internal Armed Conflict”, in 33 The American University Law Review (1983) p. 67 note 1. Thomas P. Thornton, “Terror as a Weapon of Political Agitation”, in H. Eckstein, Internal War (1964) 73, 77, as quoted in “‘Guerrilla’ and ‘Terrorism’ in Internal Armed Conflict”, op. cit. note 54, at pp. 69, 70.

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ism is of overriding importance. Nor, for that matter, is this element absent from international armed conflict. 5.3

Conclusion

The rules on general protection of the civilian population, introduced into the Protocols of 1977, fall in the category of battlefield law, just like the rules in Part III of Protocol I on methods and means of warfare and on combatant and prisoner-of-war status. The rules do not grant civilians complete immunity from the effects of hostilities, or of bombardment in particular. In other words, the Diplomatic Conference of 1974-1977 once again steered a careful “middle course” between Baron Jomini’s two extremes. At the same time, the balance of the values and interests at stake has shifted noticeably in the direction of protection of civilians and civilian populations. Consider siege: while the conferences of Brussels, 1874, and The Hague, 1899/1907, had passed over in silence the fate of the inhabitants of a place under siege, the situation of these people must now be regarded as covered by the rules limiting attacks to military objectives (including enemy combatants) and prohibiting not only direct attacks on civilians but indiscriminate attacks as well. Even so, a place under siege by definition is a defended place, and under the present rules the civilian inhabitants of such a place are far from enjoying a position as “simple spectators” of the ongoing hostilities. Most far-reaching, indeed categorical, is the legal protection of the civilian population “as such” and individual civilians from direct attack. The prohibition of such attacks is enriched with the prohibition of attacks or threats of attack the primary purpose of which is to spread terror among the civilian population; a prohibition that in my opinion includes attacks with that primary purpose even when the actual target is a military objective. A considerable number of states are party to the Protocols of 1977 and thus bound to respect their terms as a matter of treaty law. Then, as regards Protocol I in particular, signatory but non-ratifying states such as the United States are obliged, in terms of Article 18 of the Vienna Convention on the Law of Treaties, to “refrain from acts which would defeat the object and purpose” of the Protocol. Providing a significant level of respect for the civilian population and individual civilians doubtless constitutes an important element in the object and purpose of the Protocol. It is moreover widely accepted that contemporary customary international law on the conduct of hostilities encompasses rules on the protection of civilians that do not differ all that much from the principal provisions in Protocol I. Israel and the few other states that did not even sign the Protocol are bound to respect these rules of customary international law. Again, to the extent that the rules in Protocol II on protection of civilians may be said to belong to

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Reprinted in 8 ILM 679 (1969).

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customary law, these rules as well would need to be respected by parties to internal armed conflicts. 6

Sarajevo 2003

The break-up, in 1991, of the Socialist Federal Republic of Yugoslavia into four separate entities has set in motion a series of armed conflicts between or within the various parts, waged with traditional means and for the most part on the ground. The hostilities have yielded three classic cases of protracted bombardment and siege: Dubrovnik, Sarajevo, and Srebrenica, each leading to prosecutions before the International Criminal Tribunal for the Former Yugoslavia (or ICTY). As noted in the Introduction, this paper singles out Sarajevo, not because this was the worst case – Srebrenica may stand out as the most incomprehensibly inhumane of the three – but because the siege of Sarajevo has provided the first instance of an international tribunal sentencing a defendant for the “crime of terror”. The Judgement in question, delivered on 5 December 2003 by Trial Chamber I in the case of the Prosecutor v. Stanislav Galić, concerns a campaign of artillery and mortar shelling and sniping of Sarajevo, the capital of Bosnia-Herzegovina, that began in 1992 and continued with varying intensity for several years. The Indictment specifies that the Sarajevo Romanija Corps of the Bosnian Serb Army (or VRS) “implemented a military strategy which used shelling and sniping to kill, maim, wound and terrorize the civilian inhabitants of Sarajevo.” It graphically describes the campaign as directed “at civilians who were tending vegetable plots, queuing for bread, collecting water, attending funerals, shopping in markets, riding on trams, gathering wood, or simply walking with their children or friends. People were even injured and killed inside their own homes, being hit by bullets that came through the windows.” It adds that “[t]he attacks on Sarajevo civilians were often unrelated to military actions and were designed to keep the inhabitants in a constant state of terror.” 49 50

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This would change at a later stage, when NATO staged its bombing campaign against Serbia over the asserted suppression of the Kosovar people. The siege and bombardment of Dubrovnik led to the convictions of Pavle Strugar (IT-01-42-T, Trial Chamber II, 31-01-05) and Miodrag Jokić (IT-01-42/1-S, Trial Chamber I, 18-03-04). The events in and around Srebrenica resulted in the conviction of Radislav Krstić (IT-98-33-A, Appeals Chamber, 19-04-04). – The bombardment of Zagreb, equally the subject of cases before the ICTY, lasted only two days. Case No. IT-98-29-T; the Trial Chamber sentenced Galić to 20 years’ imprisonment: para. 769. – The weight the Tribunal attaches to “Sarajevo” may be appreciated from the fact that the campaign figures as the first charge in the recently published Indictment of Momcilo Perisić, chief of the Yugoslav military staff at the time of the campaign; Case No. IT-04-81, 22 Feb. 2005, paras. 40-46. Indictment dated 26-03-99, Case No. IT-98-29-I.

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From September 1992 to August 1994, Stanislav Galić, Major General in the VRS, had served as the commander of these forces. The Indictment charges him with individual and command responsibility, inter alia, for three violations of the laws or customs of war. One is defined as “unlawfully inflicting terror upon civilians” (count 1). The other two, both defined as “attack on civilians”, concern, respectively, “conduct[ing] a coordinated and protracted campaign of sniper attacks upon the civilian population of Sarajevo” (count 4) and “conduct[ing] a coordinated and protracted campaign of artillery and mortar shelling onto civilian areas of Sarajevo and upon its civilian population” (count 7). The Indictment specifies that all three imputed acts constitute violations of Article 51 of Protocol I and Article 13 of Protocol II and are punishable under Article 3 of the Statute of the ICTY. The first task for the Trial Chamber is to establish whether the acts imputed in the Indictment actually fall under the scope of Article 3 of the Statute. Since both the opening sentence of the Article (empowering the Tribunal “to prosecute persons violating the laws or customs of war”) and the examples it provides were drafted to reflect 1899/1907 Hague law and thus do not mention civilians, it might not seem particularly suited to cover the acts set forth in the Indictment. However, the ICTY Appeals Chamber long ago levelled this barrier by deciding that Article 3 is a residual clause covering all violations of humanitarian law not falling under other articles of the Statute. By its same decision the Appeals Chamber established four conditions for alleged criminal conduct to fall under Article 3: it must infringe a rule of international humanitarian law; this rule must be “customary in nature or, if it belongs to treaty law, the required conditions must be met;” the violation of the rule must be serious, and it “must entail, under customary or conventional law, the individual 53

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For fear of getting too deeply entangled in matters of criminal law, I shall not enter into the charges of crimes against humanity in counts 2, 3, 5 and 6 of the Indictment. The text was drafted with this purpose in mind in order to avoid possible objections by the United States of America in the Security Council. Art. 3 provides the following examples: (a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; (b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; (d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science; (e) plunder of public or private property. Judgement, para. 10, quoting the Tadić Jurisdiction Decision, paras. 89, 91.

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criminal responsibility of the person breaching the rule.” The Trial Chamber applies this format in its discussion of the crimes of “attack on civilians” and “terror against the civilian population” (in that order). In particular the fourth so-called Tadić condition, the requirement of individual criminal responsibility, involves typical criminal law elements like intent and mens rea. Rather than following the Trial Chamber in its discussion of these elements, I shall confine my comment to those bits that I consider of interest from the point of view of international humanitarian law. 6.1 The Crime of Attack on Civilians The Trial Chamber needs few words to find that counts 4 and 7, on the crime of attack on civilians, meet the first Tadić condition since they are based on the first sentence of Article 51(2) of Protocol I and Article 13(2) of Protocol II. The Chamber next notes that according to well-established Tribunal jurisprudence “the principle of protection of civilians has evolved into a principle of customary international law applicable to all armed conflicts,” so that the “prohibition of attack on civilians … reflects customary international law.” Given the conjunctive “or” in Article 3 of the Statute (“laws or customs of war”) this should be enough. Not so: the Chamber goes on to explain that the principle “had also been brought into force by the parties by convention.” It asserts that parties to an armed conflict can, “by agreement, bring into force provisions of Additional Protocol I, regardless of the nature of the conflict.” And, lo and behold, this is exactly what the parties to the conflict in Bosnia-Herzegovina had done: starting with an agreement of 22 May 1992 (three days after the mock withdrawal of the Yugoslav army from Bosnia-Herzegovina) and under the auspices of the ICRC, they had concluded a series of agreements on application of humanitarian law, including the principle that “[t]he civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. They shall not be made the object of attack.” The Trial Chamber sets surprisingly great store by these inter-party agreements which, with one exception, were blatantly and systematically disregarded

56 57 58 59 60 61

Ibid., para. 11, quoting the Tadić Jurisdiction Decision, para. 94. Ibid., para. 16. Ibid., para. 19. Ibid., para. 20. Ibid., para. 21. The Trial Chamber gratefully notes that there is no need “to decide on the qualification of the conflict in and around Sarajevo.” Ibid., para. 22. In this and the next paragraphs it mentions the successive agreements.

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from day one. I for one doubt that any of the parties’ representatives involved in the making of the 22 May agreement ever considered that it might one day be held against them in procedures before an international tribunal. Even so, the Trial Chamber reads into the agreement that “the parties to the conflict clearly agreed to abide by the relevant provisions of Additional Protocol I protecting civilians from hostilities.” In consequence, Article 51, along with a list of other articles of the Protocol, “undoubtedly applied as conventional law between the parties to the conflict.” Grounds on which the Chamber “finds that the second Tadić condition is met.” Passing over without comment the conclusions of Trial Chamber I that the third and fourth Tadić conditions are fulfilled as well, I single out one point of the Chamber’s remaining deliberations on the law relating to the crime of attack on civilians: viz., its views on direct participation in hostilities. Paraphrasing Article 51(3) of Protocol I, the Chamber notes that the protection of individual civilians “is suspended when and for such time as they directly participate in hostilities.” For its interpretation of this notion the Chamber relies on three sources: the ICRC Commentary on the 1977 Protocols, the Kupreškić Trial Judgement and the opinion of the Inter-American Commission on Human Rights in the Tablada case. The ICRC Commentary notes that “the immunity from attack afforded civilians is subject to a very stringent condition: that they do not participate directly in hostilities, i.e., that they do not become combatants, on pain of losing their protection.” Then follows the oft-quoted phrase that direct participation “means acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces.” Clearly, nobody will contest that such plain acts of war entail loss of protection. The other two sources even more explicitly contemplate situations where groups of civilians rise in arms against the enemy. In Kupreškić, the Trial Chamber ruminates in the abstract about an armed group that “engages in fighting against the enemy belligerent.” And in the Tablada case, the Commission’s reading of a real-life situation leads it to conclude that the thirty-hour struggle of a small 62

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The exception was an agreement on release and transfer of prisoners, where parties had a mutual interest in implementation. – This is not the first time an ICTY judgment brings the inter-party agreements into play; an earlier instance is the Trial Judgement in the Prosecutor v. Blaškić (IT-95-14-T, 3 March 2000), using the agreement of 22 May 1992 as a reinforcement of the argument that Protocol I was applicable as conventional law (para. 172). Para. 25. The paragraph reads as follows: “Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.” ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), para. 1944; my emphasis. Paras. 522-523.

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group of armed civilians against an equally modest unit of the Argentine armed forces, in a situation where no other hostilities were in progress in the country, by itself had constituted an internal armed conflict. Once again, there can be no doubt that groups of civilians thus engaging in actual combat may be targeted as long as they are so occupied. However, it has long been realized that active participation in hostilities encompasses other, non-violent activities as well. Implicitly recognising this fact, the recently published ICRC study on customary international humanitarian law states that apart from “the few uncontested examples … in particular use of weapons or other means to commit acts of violence against human or material enemy forces, a clear and uniform definition of direct participation in hostilities has not been developed in State practice.” Nor is there agreement among experts about the definition of direct participation in hostilities. How then to distinguish combatants and other direct participants from non-participating civilians? The Trial Chamber recalls the duty of combatants to distinguish themselves from civilians, as it says, “at all times”; a duty combatants generally fulfil “by wearing uniforms, or at least a distinctive sign, and by carrying their weapons openly.” However, Article 44(3) of Protocol I obliges combatants to distinguish themselves from civilians only for such time as “they are engaged in an attack or in a military operation preparatory to an attack.” This leaves the many hours of non-activity, which need not only be night hours. Then, the “generally accepted practice” of wearing uniforms (etc.) may correctly describe the practice of regular armies in traditional battle situations but needs not reflect reality in a situation like the siege of Sarajevo, where a city is defended by armed forces of the same ethnic group as the other inhabitants. And as regards civilian direct participants, whether of the fighting or non-fighting variety, the situation is even worse: these persons are under no legal obligation to distinguish themselves from their innocent brethren and sisters. 67

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Report No. 55/97, Case No. 11.137, Argentina, appr. 18 Nov. 1997; OEA/Ser.L/V/II.97, Doc. 38, para. 156: a pitched battle between civilian “attackers and members of the Argentine armed forces triggered application of the provisions of Common Article 3, as well as other rules relevant to the conduct of internal hostilities.” Para. 178: the civilians by their activities had “become legitimate military targets … subject to direct individualized attack to the same extent as combatants.” (emphasis as in original) In para. 327, the Commission explicitly qualifies the events as having constituted “a non-international armed conflict.” See also, by this author, “State Sovereignty versus International Concern in Some Recent Cases of the Inter-American Commission of Human Rights”, in Gerard Kreijen et al. (eds.), State, Sovereignty, and International Governance (2002) p. 259, at pp. 262-263. ICRC, Customary International Humanitarian Law, Vol. I: Rules (2005) p. 23. In 2003, the ICRC started a series of meetings with government and military lawyers and other experts in hopes of further clarifying the notion of direct participation. A third meeting was held in October 2005, and more meetings are to follow. Judgement, para. 50.

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The upshot is that a group of people in besieged Sarajevo may have been composed at any time of uniformed and non-uniformed combatants; direct participants of the fighting variety and whether or not so engaged at the time; direct participants of the non-fighting variety pursuing their activity and colleagues who are “off-duty”; and a rest group of “innocent civilians”. Recognising that “in certain situations it may be difficult to ascertain the status of particular persons in the population,” the Chamber suggests that the “[c]lothing, activity, age, or sex of a person are among the factors which may be considered in deciding whether he or she is a civilian.” I fear that apart from extremely low or old age, the sole determinant factor in this list is “activity” and, more specifically, visibly combat-related activity identifying the regular combatant and the civilian directly participating in hostilities in the narrow sense. This leaves unanswered the crucial question how, outside that narrow circle, the sniper or artillerist is to determine which individuals amidst a multitude of persons all looking exactly the same are legitimate targets and which ones are not – and how a court afterwards may decide that the sniper or artillerist acted within or outside the law. In practice, more important than the factors mentioned by the Trial Chamber will be the information available to the actor about military matters such as defence positions, location and movement of troops, points of origin of enemy fire, and so on. After further argument, the Trial Chamber finally finds that: an attack on civilian[s] can be brought under Article 3 by virtue of customary international law and, in the instant case, also by virtue of conventional law and is constituted of acts of violence wilfully directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population.

With that, the Chamber broaches the next item on its agenda: the crime of “terror against the civilian population” – and immediately splits into a majority of two and a minority of one ( Judge Rafael Nieto-Navia).

70 71 72

Loc. cit. Para. 62. The case before the Trial Chamber was not one of individuals shelling or sniping at targets in Sarajevo. The actual perpetrator-turned-defendant was a general who had been directing the violence against the besieged city of Sarajevo without ever firing a shot himself, and whose responsibility therefore could lie only in the orders he had given or in the conduct he had not prevented or corrected. One reason why the Chamber split may have been the closer affinity of the Colombian Judge Rafael Nieto-Navia with the military aspects of such a situation and his greater willingness to bring these aspects into play even in the starkly abstract legal analysis of the matter of jurisdiction.

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6.2 The Crime of Terror against the Civilian Population It is thus for the majority to “decide whether the Tribunal has jurisdiction over the crime of terror against the civilian population, but [it hastens to add] only to the extent relevant to the charge in this case [, i.e.,] whether a specific offence of killing and wounding civilians in time of armed conflict with the intent to inflict terror on the civilian population, as alleged in the Indictment, is an offence over which it has jurisdiction.” This form of words excludes the “threat of violence” specifically mentioned in the second sentence of Article 51(2). The majority places on record that it “has not neglected” this question but, since it “is not at issue in this case,” there is no need to address it. The majority correctly notes that “actual infliction of terror is not a required element of the offence.” It also replaces “civilians” with “the civilian population”, implying that in its view the intent of inflicting terror must be directed against a civilian population as a whole rather than against isolated civilians. Having settled these points, the majority rapidly concludes that the first and second Tadić conditions are met: count 1 is clearly based on the second sentence of Article 51(2) and this applies as treaty law, inter alia, by virtue of the inter-party agreement of 22 May 1992. As for the third Tadić condition, the majority correctly notes that it is not the rule but the alleged violation of the rule which must be serious. A protracted campaign of shelling and sniping directed at the civilian population of a city under siege implies “a very serious violation of a basic rule of international humanitarian law… Since doing that much is a serious violation, doing the same with the primary purpose of spreading terror among the civilian population can be no less serious, nor can it make the consequences for the victims any less grave.” So, the third Tadić condition is met as well. This leaves the fourth Tadić condition, which requires individual criminal responsibility of the perpetrator under existing customary or conventional law. The issue confronting the majority is “whether the intent to spread terror had already been criminalized by 1992.” Its attempt to prove that this was indeed the case results in a long series of arguments. 73 74

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Para. 87; italics as in the original. Para. 110. The majority makes this statement in its discussion of the third Tadić condition. In note 179, it notes that “a credible and well publicized threat to bombard a civilian settlement indiscriminately, or to attack with massively destructive weapons, will most probably spread extreme fear among civilians and result in other serious consequences, such as displacement of sections of the civilian population.” Para. 65. Count 1 incorrectly speaks of “unlawfully inflicting terror upon civilians.” Supra, text at note 53. Para. 96. Paras 107-109. Para. 113.

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Two far-away items open the list: one, a sentence delivered in 1947 by a Dutch court-martial in Makassar, Netherlands East Indies, sentencing seven Japanese prisoners of war to death and six others to prison sentences, for acts qualified as “systematic terrorism practiced against civilians;” and the other, a reference in Australia’s War Crimes Act of 1945 to “systematic terrorism” as a war crime. The legislators in both instances had taken their inspiration from a list of war crimes drawn up in 1919 by a commission of experts set up by the victor powers to “inquire into breaches of the laws and customs of war committed by Germany and its allies during the 1914-1918 war.” The catalogue of the commission was not included in the Treaty of Versailles, however. This leaves the two examples of domestic legislation standing apart as isolated incidents. Literally closer to home is the majority’s description of the Yugoslav legislation on the topic. Also temporally and psychologically this bit of domestic legislation may be much more relevant than the above examples from the other side of the globe. The majority shows that both before and after Yugoslavia’s ratification of Protocol I its criminal code has provided for the punishment of acts aimed to induce terror among the civilian population. As well, Yugoslavia’s Armed Forces Regulations on the Application of International Laws of war explicitly made “application of measures of intimidation and terror” a criminal offence. Nor were these rules and regulations disavowed by the Republika Srpska – the Serbian Republic of Bosnia-Herzegovina: on the contrary, they were reaffirmed in several documents issued at high level, including by Radovan Karadžić himself. On top of all this, there is the famous inter-party agreement of 22 May 1992. As the majority recalls: This states in its section on “Implementation” that each party “undertakes, when it is informed, in particular by the ICRC, of any allegation of violations of international humanitarian law, to open an enquiry promptly and pursue of conscientiously, and to take the necessary steps to put an end to the alleged 79

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Paras. 114-115. The sentence rests on a decree issued in 1946 by the Dutch authorities in the Netherlands East Indies that included “systematic terror” on a list of war crimes understood as “acts which constitute a violation of the laws and usages of war committed in time of war by subjects of an enemy power…” The accused had committed their acts as members of the Japanese occupation force. Para. 118. Para. 116. Apart from language concerning the planned (but failed) trial of the German Emperor William II, the Treaty of Versailles makes provision for “the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war.” Art. CCXXVIII. See Leon Friedman, The Law of War – A Documentary History (1972) p. 417, at p. 432. Paras. 121-122. Para. 123.

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violations or prevent their recurrence and to punish those responsible in accordance with the law in force.”

“Clearly”, the majority adds, “the parties intended that serious violations of international humanitarian law would be prosecuted as criminal offences committed by individuals,” and it mentions one case where this actually happened. It seems to me that the reference to the domestic legislation in force in Bosnia-Herzegovina, including in the Republika Srpska, read together with the language of the 22 May agreement, amounted to enough grounds to justify the conclusion of the majority that for the purposes of the trial of Major General Galić, the act of terror against the civilian population had duly been criminalised at the time of the siege of Sarajevo. However, rather than resting its case, the majority advances an entirely different argument linking Article 51(2) of Protocol I to Article 33(1) of the 1949 Civilians Convention. This Article provides that “[n]o protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.” Stating the obvious, the majority notes that “purely by operation of Article 33, civilians in territory not occupied by the adversary are not protected against ‘measures of intimidation or of terrorism’ which the adversary might decide to direct against them.” However, the majority argues, Protocol I has “elaborated and extended the protections of the Geneva Conventions, including those of the fourth Convention on the protection of civilians in times of war.” The Protocol moreover is applicable in the same situations as are the Geneva Conventions, and these include “all cases of partial or total occupation.” Grounds for the majority to conclude that: Protocol I applies to the aforementioned situations to the extent feasible, as well as to situations such as that which the present Indictment is concerned with, in which civilians not in the hands of an attacking force allegedly become victims of attacks by that force. In other words, whereas the cited part of Article 33 of Geneva Convention IV brought protection from intimidation or terror-

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Para. 124; emphasis as in the original. Ibid. The majority refers to one instance where “the Split County Court in Croatia convicted Rajko Radulović and other members of the army of ‘Republika Srpska’ pursuant to provisions including Article 33 of Geneva Convention IV, Article 51 of Additional Protocol I, and Article 13 of Additional Protocol II, for, inter alia, ‘a plan of terrorising and mistreating the civilians’ …” Para. 126. Para. 119. Para. 120. As provided in common Art. 2. Para. 120.

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I cannot pass by this argument without comment. Article 33, with the rest of the Civilians Convention, concerns “protected persons”, i.e., persons who find themselves in the power of the enemy, whether on its territory or in territory occupied by the enemy. As provided in Article 27 of the Convention, this enemy is under an affirmative duty to respect and protect the people concerned. This case is totally different than the battlefield situation, covered by Article 51(2) of Protocol I, of an enemy directing a campaign of shelling and sniping against a city under siege. Admittedly, as stated in Article 1(3), the Protocol supplements the 1949 Conventions, and it applies in the same situations as those Conventions. However, the term “supplement” thinly disguises the fact that a significant part of the rules introduced into the Protocol properly belong to the area of battlefield law: rules, that is, on combatants and their conduct of combat and, in this context, on the fate of civilians caught in the turmoil. In battle, combatants are under no obligation to “respect and protect” civilians who are not in their power; their only duty is to spare civilians as far as possible. – Article 51(2) is a part of these rules, and the prohibition of attacks with the primary purpose of spreading terror among the enemy civilian population is as much part and parcel of battlefield law as is, for instance, the prohibition in Article 40 to order that no quarter shall be given to enemy combatants. I fail to understand why the majority included this strange argument at all. Apart from being ill-founded, I do not see how it adds to the thesis that the “act of terror” was punishable by 1992. In the end, it may amount to no more than a piece of obiter dictum. In any event, on the basis of its arguments, the majority finds that “[b]ecause the alleged violations would have been subject to penal sanction in 1992, both internationally and in the region of the former Yugoslavia including Bosnia-Herzegovina, the fourth Tadić condition is fulfilled.” 91

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Art. 4(1) of Convention IV: “Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” Paras. 2-4 specify categories of persons that are not protected under the Convention; these are of no relevance here. Art. 27(1): “Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.” Para. 129.

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All of this leads the majority to conclude that: an offence constituted of acts of violence wilfully directed against the civilian population or individual civilians causing death or serious injury to body or health within the civilian population with the primary purpose of spreading terror among the civilian population – namely the crime of terror as a violation of the laws or customs of war – formed part of the law to which the Accused and his subordinates were subject to during the Indictment period.

6.3 The Outcome Several hundred paragraphs further down, and after an impressive display of factual evidence and further deliberations about the legal side of the affair, the full Trial Chamber is satisfied that “the crime of attack on civilians within the meaning of Article 3 of the Statute was committed against the civilian population of Sarajevo during the Indictment Period.” In similar terms, the Majority is satisfied that the “crime of terror … was committed against the civilian population of Sarajevo.” Following further deliberations and conclusions about the defendant’s individual responsibility for these crimes, it is again the Majority which “finds that General Galić is guilty of having ordered the crimes proved at trial.” 94 95 96

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Para. 138. Para. 596. Para. 597. In paras. 593 and 594, the Majority had developed the point, as follows: In view of the evidence in the Trial Record it has accepted and weighed, the Majority finds that the attacks on civilians were numerous, but were not consistently so intense as to suggest an attempt by the SRK to wipe out or even deplete the civilian population through attrition. The attacks on civilians had no discernible significance in military terms. They occurred with greater frequency in some periods, but very clearly the message which they carried was that no Sarajevo civilian was safe anywhere, at any time of day or night. The evidence shows that the SRK attacked civilians, men and women, children and elderly in particular while engaged in typical civilian activities or where expected to be found, in a similar pattern of conduct throughout the city of Sarajevo. The Majority finds that the only reasonable conclusion in light of the evidence in the Trial Record is that the primary purpose of the campaign was to instil in the civilian population a state of extreme fear. In sum, the Majority finds that a series of military attacks on civilians in ABiHheld areas of Sarajevo and during the Indictment Period were carried out from SRK-controlled territories with the aim to spread terror among that civilian population. The Majority accepts the Prosecution’s stand that as such, these attacks carried out with a specific purpose, constituted a campaign of sniping and shelling against civilians. Para. 749.

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The Trial Chamber (and, wherever relevant the Majority) arrived at the above conclusions and findings on the basis, not only of the abstract legal arguments at the outset about the crimes of “terror” and “attacks on civilians” as punishable acts under Article 3 of the Statute, but of a painstaking investigation into and appreciation of the concrete facts brought before it by the Prosecution, and a legal analysis of the end result of these investigations. These further parts of the Judgement demonstrate that the Chamber was fully aware of the specific circumstances surrounding the siege of Sarajevo, an awareness it had so studiously kept hidden in its abstract first part. The facts submitted to the Trial Chamber had been carefully selected with a view to proving that attacks on civilians had been committed and that many of these attacks were so clearly illogical from a military point of view that they could only be explained as acts intended to keep the population in a state of perpetual terror. Nor was it news that these acts had been performed at the time of the siege: the media had kept the world well informed about what was actually happening. For the Trial Chamber, the main difficulty in assessing the evidence was not to determine whether the facts had actually occurred: on this, the three Judges were united. The point was, rather, whether the proven facts, taken together, actually constituted a campaign of shelling and sniping directed, not merely against individual civilians but against the civilian population, as an essential element of the crime of terror. The Majority was convinced that this was the case, and Judge Nieto-Navia was not. In the foregoing I have offered some critical comments on the Judgement of Trial Chamber I in the case of the Prosecutor v. Galić. These were all concerned with the exposé on the law permitting the conclusion of the Chamber and the Majority, respectively, that the ICTY has jurisdiction over the crime of attack on civilians and the crime of terror, as acts punishable under Article 3 of its Statute. And each critical note had to do with my particular perspective, which is that of international humanitarian law, or, more accurately, the law of armed conflict. The following remarks may further clarify why I felt the need to make these comments. By the time the Trial Chamber wrote its Judgement, it must have been fully acquainted with the facts of the case. As carefully selected and presented by the Prosecutor, these facts without exception concerned attacks on civilians or evidently indiscriminate attacks. Questions such as whether a particular targeted person or group of persons fell in the category of innocent civilians or of direct participants in hostilities, or perhaps even of combatants in civilian dress, did not arise. There was, moreover, some evidence that the long siege with its spasmodic firing episodes and the ensuing continual state of terror among the population of Sarajevo was planned and directed from high up, even, as the Majority accepted, by orders of General Galić himself. And of course, it was the General who was on trial and not the persons under his command who had carried out the individual attacks. These circumstances may explain why the Trial Chamber in its ini-

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tial, abstract exposé of the law did not refer to matters that could have happened and, indeed, are not unlikely to have actually happened during the siege, but that simply never turned up in the proceedings. However, precisely because the Trial Chamber was presenting its interpretation of Article 3 of the Statute in totally abstract terms, it ought to have developed its argument, first on the crime of attack on civilians and then on the crime of terror, with an open eye to the numerous complicating factors it could have had to consider had the siege of Sarajevo been put before it in all its chaotic complexity. One would hope, for instance, that the Chamber then would have realized that Article 33 of the Fourth Geneva Convention and Article 51(2) of Protocol I are not so easily linked, and that humanitarian law stricto sensu and battlefield law each apply within their proper domain and under their own paradigm. Having said all this, I would just add that I am quite happy with the outcome of the trial of General Galić. Although, by a quirk of the procedure, the General was not sentenced for the crime of attack on civilians, his individual criminal responsibility for this crime was duly established. This yet again adds force to the rules prohibiting the targeting of civilians and indiscriminate bombardment. Indeed, it will give satisfaction to those who believe (as I do not) that rules qualify as law only if violation of the rules entails the individual criminal responsibility of the perpetrators. In effect, the Statute of the International Criminal Court contributes to satisfying this desire by bringing the act of “intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” under the serious violations of the law of armed conflict that qualify as war crimes, and this both for the case of international armed conflict and for a Protocol II type internal armed conflict. Even so, the trial of the commanding officer of an army that over a period of several years subjected the inhabitants of a besieged city to acts of shelling and sniping adds, so to speak, flesh and blood to the notion of individual criminal responsibility. I note that the crime of terror against a civilian population does not figure in the Statute of the International Criminal Court. It will be interesting to see whether the Judges of this Court dare to follow the example set by the Majority of Trial Chamber I in construing this crime as a distinct, more serious version of the war crimes the ICTY has been given jurisdiction to try. In the alternative, these Judges may be confined to treating it as an aggravating factor.

98 99

The Trial Chamber refers to earlier instances where ICTY Chambers have held accused responsible for attacks against civilians; para. 19 with notes 24 and 25. Statute of the ICC, art. 8(2) under (b)(i) and (e)(i).

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Conclusion

As set forth in the foregoing, bombardment has been the object of regulation from the very outset of the process of codifying the law of war. Brussels 1874 proposed, and The Hague 1899 accepted, that bombardment of undefended places would be prohibited and that in attacking defended places, certain buildings should be spared as much as possible. Regulation implied the recognition of bombardment as an acceptable method of warfare. An early attempt at outright prohibition of bombardment from the air resulted in a five-year moratorium in 1899 (the balloon era) and even less effective steps and suggestions in later years (1907 and 1932-1934), with the aeroplane ever more clearly showing its war-fighting capabilities. Brussels 1874 and The Hague 1899 paid preciously attention to the situation of the civilian population in a defended place. The exception, the 1907 Convention on naval bombardment, introduced the notion of military objective and, with that, the idea that other objects could not be targeted. The 1923 Hague Rules on Air Warfare elaborated this idea into a set of detailed rules, starting out with the principle that air bombardment for the purpose of terrorising the civil population is prohibited. Although quoted more than once in official publications, the Rules remained an expert text without force of law, however. It took the Second World War, and the Spanish civil war before it, to expose the horrendous death and destruction ruthless air attacks could bring about deep into enemy territory, thus demonstrating the urgent need of internationally agreed rules that might reduce the impact of air-to-ground operations on the civilian population. However, no matter the urgency, it would take another twenty-five years before the work on this endeavour could be seriously started. The rules in the 1977 Protocols Additional to the 1949 Geneva Convention relating to protection of the civilian population against the effects of hostilities have been hailed as a particularly significant achievement of the 1974-1977 diplomatic conference. I have always believed, and continue to believe, that the appreciation is correct. At the same time, this enthusiasm about the achievements of the conference should not obscure the fact that attack, as an important part of military operations, remains a permissible wartime activity. The rules governing this activity may have been negotiated and voted in Geneva but they must be accepted and understood as battlefield law.

100 Part One of the Handbook of the International Red Cross and Red Crescent Movement, entitled International Humanitarian Law Conventions and International Agreements, includes the Protocols in section A: Law of Geneva; and the Hague Convention and Regulations on land warfare in section B: Law of The Hague. This is geographically correct, and of course it would have been impossible to split up the Protocols into parts that deal with Geneva-type protection law and Hague-type rules of battlefield law.

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That being said, I am convinced that the rules relevant to our topic of bombardment make good military sense, and a well trained and equipped professional armed force should encounter no insurmountable problems in implementing the rules. In effect, the recent enormous developments in the technology of warfare may have made this that much easier. The negotiators of the nineteen seventies heeded the warning implied in the words spoken a century earlier by Baron Jomini: one should neither aim to make war terrible beyond endurance in the naïve hope that it will last only a short while, nor attempt to turn it into a tournament between the armed forces and with the peoples as simple spectators. Knowing that they were drafting rules for the real world, our negotiators avoided both extremes and steered a careful middle course. The rules relating to bombardment in particular represent a wellbalanced compromise between the ideas of the post-World War One marshals and generals who looked forward to blasting away at the enemy civilian population, and those idealists who would have wished to achieve absolute immunity for civilians. The rules on bombardment, as all other rules of international humanitarian law, are apt to be violated, whether incidentally or systematically. While it is primarily the task of the parties concerned to cope with such violations, the recent establishment of international criminal jurisdictions must be warmly welcomed. The ICTY and ICTR have already developed an important body of caselaw; quasi-international courts are following suit, and it may be hoped that the International Criminal Court will soon start contributing to the work. Miracles should not be expected of these developments. The prospect of being brought before such a court may deter some and for some time, but it will not withhold all potential violators all the time. In particular, the policymaker who is set to achieve an objective he regards as all-important but the realization of which implies the violation, say, of a rule of battlefield law governing the conduct of bombardment, may simply discount the risk of prosecution and trial or, at best, take it in his stride. In effect, I have not yet discovered any deterrent effect of the jurisprudence of ICTY and ICTR. This being so, enforcement of the rules on bombardment, as of battlefield law in general, will continue to be an urgent task for the international community as long as warfare remains a feature of our history.

PART 4 combatants, civilians, guerrilla fighters, terrorists

Chapter 20 The Position of Guerrilla Fighters under the Law of War*

1 The Concept and Definition of “Guerrilla” 1.1 The Notion of Guerrilla The term guerrilla (literally: petty war) is used both independently and as a component part in various expressions, such as guerrilla warfare, guerrilla tactics, guerrilla fighters. As a rule, the meaning of these expressions is more or less clear in the given context; but this is far from suggesting that they have an agreed, unequivocal meaning. Thus, it seems necessary first of all to give some indication of their scope and to examine whether a common denominator can be found. The word guerrilla itself is used in two different ways: as a synonym for guerrilla warfare, or for a guerrilla fighter (for which the correct term would be guerrillero). Guerrilla warfare is usually understood to mean the type of armed conflict on land in which guerrilla fighters are involved in the hostilities at the side of at least one of the parties to the conflict. This conflict may moreover be characterized by the application of guerrilla tactics, although the degree to which this is the case may vary with the various stages of the conflict. The term guerrilla fighters is used in more than one way, but according to a fairly widely accepted view it embraces all irregular combatants (Reaffirmation, p. 114). It should be noted that this excludes members of the regular armed forces applying guerrilla tactics. *

Published earlier in 11 Revue de droit pénal militaire et de droit de la guerre (1972) pp. 55-90. In preliminary remarks it was noted that the text had served as a report for the Congress of the International Society of Military Law and the Law of War held in Dublin in May 1970, and thanks were expressed to Major-General George Prugh, Judge Advocate General of the U.S. Army (as he then was) for documentation about the treatment of prisoners in Vietnam, and Meir Shamgar, at the time AttorneyGeneral of Israel, for a judgement dated 13 April 1969 of an Israeli military tribunal denying POW status to captured Arab guerrillas. – The references in the text to “Reaffirmation” are to a report Reaffirmation and Development of the Laws and Customs Applicable in Armed Conflicts submitted by the ICRC to the XXIst International Conference of the Red Cross held at Istanbul in September 1969.

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The term guerrilla tactics, finally, is perhaps the least unequivocal of the various expressions mentioned. As a technical, military notion it indicates the tactics which are applied by guerrilla fighters in particular when they resort to outright military operations which remain below the level of regular, open battles. Taken thus, the term comprises a sophisticated use of the elements of mobility, dispersion and surprise in combating superior enemy forces; their aim is as much to do the enemy harm wherever he is found, as to dislodge him from specific positions (fortifications, defended towns, or even entire regions). It should be emphasized that the use of guerrilla tactics in this narrow sense is not reserved to guerrilla fighters: these tactics may equally be applied by combat units of the regular armed forces in the course of raids or similar military operations. A less narrowly restricted meaning of guerrilla tactics may include such elements as seeking support of the population (including the use of intimidation, terrorism, etc.), setting up of a shadow-administration and -government, and so on. However, so soon as elements of this kind are allowed to enter into the concept, the danger is apparent that a limitation is effected in another respect, namely, to the revolutionary type of guerrilla warfare. In other words, in a discussion of the various aspects of revolutionary guerrilla, elements such as those mentioned above cannot be left out. But guerrilla warfare can develop in other situations as well, for instance, in the event of a popular uprising against an occupying power, or of infiltration across the border into enemy territory. As elements like the seeking of support from the population, terrorism, or the need to organize some sort of administration will vary in importance according to the particular characteristics of the situation in which guerrilla warfare is resorted to, it seems advisable to omit those elements from our definition of guerrilla tactics and to restrict this to the narrow, military meaning set forth above. Even so restricted, it should be added that a conditio sine qua non for any sustained application of guerrilla tactics is a base of operations: a “sanctuary” whether within or outside the territory of the State where the fighting is going on, and serving as a safe retreat for the guerrilla fighters (Reaffirmation, p. 114). 1.2

Guerrilla Fighters as Irregular Combatants

The above may suffice to indicate that “guerrilla” is a vague concept which covers a whole range of different meanings, running from irregular combatant through a specific form of fighting to a particular type of armed conflict. It does not seem easy to point out any common denominator. Is it the irregular combatant status of the guerrilla fighters (who are characteristic participants in guerrilla warfare), or the irregular character of the tactics employed, or again some other distinctive feature? Indeed, the concept has an “undefinable and elusive character” (Reaffirmation, p. 115). It seems, moreover, that the definition given will depend on the angle from which the concept is viewed: different descriptions will emerge

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according to whether the subject is approached from the point of view of, e.g., political science, contemporary history, military science, or the law of war. In view of the fact that the object of the present report is to contribute to the clarification of the legal issues which arise in connection with the frequent recurrence of guerrilla warfare in present times, and in particular of those issues which directly concern the fate of individual human beings, the viewpoint adopted here gives primary emphasis to the position of guerrilla fighters as irregular combatants and, consequently, to the humanitarian and military aspects of their status and mode of fighting. 1.3

Non-international Armed Conflicts

The point deserves some emphasis that the situation envisaged here is one of armed conflict. While this embraces both international armed conflicts and those not of an international character, it does not include those internal situations which, while characterized by a high level of political tension and perhaps even by a measure of violence, do not amount to an armed conflict properly speaking. Two questions arise in this respect: where lies the dividing-line between armed conflicts and mere tense situations, and (a question which lies largely beyond the scope of the present report) which rules or principles of international law, if any, are applicable in the latter situations? As regards the first question, no definite answer has yet been found. The situation is moreover obscured by the frequent unwillingness of governments to recognize that a situation amounts to an armed conflict, because this implies recognition of the applicability of Article 3 of the Geneva Conventions of 1949. The ICRC stresses rightly, however, that this Article “is applicable in armed conflict in which armed forces are engaged in hostilities” (Protection of Victims of Noninternational Conflicts, report submitted to the XXIst International Conference of the Red Cross, 1969, p. 4). When those conditions are fulfilled, the applicability of the article cannot justifiably be denied. But the question remains: when can a situation be said to have developed into an armed conflict “in which armed forces are engaged in hostilities”? In this respect, the ICRC refers to the definition proposed in 1962 by a Committee of experts, according to whom “the existence of an armed conflict is undeniable, in the sense of Article 3, if hostile action against a lawful Government assumes a collective character and a minimum of organization. The duration of the conflict, the number and leadership of rebel groups, their installation or action in parts of the territory, the degree of insecurity, the existence of victims, the means adopted by the lawful Government to re-establish order, all have to be taken into account” (Reaffirmation, pp. 99-100). This definition consists of two distinct parts: (1) an indication of the distinctive features of an armed conflict as opposed to a situation of political tension and disorder (viz., an organised group opposing the government and the actions

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of which assume the character of hostilities), and (2) an enumeration of factors to be taken into account in assessing whether the situation is one of armed conflict, in particular as regards the nature of the group opposing the government and the hostile character of its actions. While the definition seems to give a correct summing-up of the main criteria it is far from precise, so that the difficulty will obviously lie in its application to concrete situations. Would it be possible to arrive at a more exact definition of armed conflict? The experts consulted by the ICRC in February 1969, while approving the criteria elaborated in 1962, “considered they could usefully be reverted to and completed” (Reaffirmation, p. 100), without indicating however in which direction such a completion ought to be sought. On the other hand, the urgency of such a re-definition seems to diminish as the opinion gains ground that, while the determination of a situation as an armed conflict may be a condition for the applicability of Article 3 as a treaty provision, it need not be decisive for the applicability of certain humanitarian principles. 1.4

Distinction between International and Non-international Armed Conflicts

A similar problem of definition arises in respect to the legal characterization of infiltrations and similar international situations of the guerrilla type. While the activities of infiltrators are in some cases dismissed as illegal entrance and possession of arms, they have in other instances been considered to amount to an armed conflict. In this respect, it should be realized that a situation of this type can constitute either an international armed conflict (involving the applicability of the laws of war and notably of the Geneva Conventions of 1949 in their entirety), a non-international armed conflict (involving as a minimum the applicability of Article 3 of the Geneva Conventions), or a mere international incident or local disturbance. The first-mentioned distinction (between international and non-international armed conflicts) is of limited importance in the present context: the humanitarian principles of the law of war apply in either type of armed conflict. Thus, GA Resolution 2444 (XXIII) of 19 December 1968 recognizes in its first preambular paragraph “the necessity of applying basic humanitarian principles in all armed conflicts”; Reaffirmation, Annexes, p. 030. The difference lies mainly in the application of all the detailed, more or less technical provisions contained in the Conventions and which elaborate the said principles: while their application is obligatory in international armed conflicts, it depends on voluntary undertakings in the event of non-international armed conflicts. Not that the text of Article 3 resembles anything like an ideal codification of the humanitarian principles involved: far from it. Indeed, recent practice has brought to light several serious inadequacies, inter alia the absence of any recognition of the need of supervision for humanitarian purposes by an independent, neutral body such as the ICRC.

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The distinction between international and non-international armed conflicts is on the other hand not wholly irrelevant to the present inquiry, as one of the specific problems of guerrilla warfare appears to lie precisely in the difficulty to apply certain of the more detailed regulations (for instance, the rules concerning the internment of prisoners of war). So, it seems necessary to point out that these two types of armed conflicts are as little divided by a hard and fast line as are non-international armed conflicts and minor political disturbances. This element of uncertainty is not solely a consequence of the understandable inclination of governments to reserve to themselves a margin of discretion in such extremely important political matters: to a large extent it is the result of the practical impossibility of giving a precise definition of either of the two concepts. 1.5

Factors Turning Non-international Armed Conflicts into International Armed Conflicts

The ICRC in its report to the Istanbul Conference (Reaffirmation, p. 100) gave express attention to the question under discussion, though only from the specific point of view of certain factors turning non-international conflicts into international ones. Two factors were mentioned in particular: foreign intervention, and the concept of a conflict as a war of liberation. Addressing the first point, some experts “admitted that foreign military intervention, on the side of either Party to a conflict, transformed a non-international conflict into an international conflict” (ibid., p. 101). Obviously, however, this leaves the question open of what constitutes “foreign military intervention”. Does this require that foreign troops take part in force in the hostilities, or is it sufficient that military advisers, instructors, specialists in the fields of communications and logistics, and other similar members of the foreign armed forces who do not themselves take an active part in the fighting, lend their services to one or the other party to the conflict? Again, does the mere fact that military supplies are being sent in quantity (and in fact are indispensable to the war effort) suffice for characterizing an armed conflict as “international”? To my mind, only the active, sustained participation of foreign combat forces would have that result; but opinions may differ widely – and are likely to be influenced by the political appreciation of this or that actual armed conflict, e.g. in Vietnam, or Biafra. Even more problematic is the concept of “wars of liberation”, a concept tied up with the right of self-determination and with the role played by the General Assembly in the decolonization process. According to some of the experts: since UNGA Resolution 1514 (December 14, 1960) on the Granting of Independence to Colonial Countries and Peoples, these wars should be admitted as entering into the category of international wars. The groups fighting against colonial governments should thus be considered subjects of international law.

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A little further on, however, the report points out that “[w]hile several experts thus endeavoured to find grounds for the political-legal conception of wars of liberation, the majority stressed that the formulation of humanitarian rules applicable to such conflict took first place.” (Reaffirmation, p. 102) Indeed, it seems somewhat arbitrary to place the “wars of liberation” which are covered by the General Assembly’s decolonization resolution in a separate category and to characterize these as international conflicts irrespective of their size, the presence or absence of effective outside support and similar factors, while other conflicts involving issues of self-determination would not be so characterized. In my view, there is little merit in attempts to attribute a particular status to certain armed conflicts merely on account of their cause. In short, it is suggested that the discussions reported in Reaffirmation have not brought the issue significantly nearer to its solution. It should be immediately added, however, that I do not see such a solution either, any more than the ICRC or the experts it consulted in February 1969. Thus, the qualification of armed conflicts as “international” or “non-international” remains to my mind a matter of assessment of available data in each separate case and of basing a conclusion on such relatively vague grounds as scope and duration of the conflict, presence of foreign military intervention, etc. Recognition of the insurgents as a belligerent party by the lawful government will of course be of decisive importance; but such a step is as rare as it is important. 1.6

Delimitation between International Armed Conflicts and International Incidents

After the above discussion of various problems attending the definition and delimitation of “non-international” and “international” armed conflicts, little need be said about another boundary problem, viz., the delimitation between international armed conflicts and mere incidents. Here, again, the political decision of the parties concerned will be of decisive importance, in particular if it amounts to an express recognition by one or both of the parties to the conflict that the situation amounts to an international armed conflict. Indeed, such recognition may be less rare here than in the event of an initial internal disturbance having assumed international proportions. However, as the ICRC observes, even here the situations are variously “qualified as ‘police operation’, ‘legitimate defence’, ‘assistance to an ally with domestic difficulties’, etc.” (Reaffirmation, p. 94), while they may on an objective appraisal present all the characteristics of an international armed conflict. Which objective criteria distinguish an international armed conflict from a mere incident? It is submitted that similar more or less imprecise criteria may be applied here as were laid down in the formula of the experts of 1962 for the determination of non-international armed conflicts. A basic consideration will be the recurrence of hostile actions in enemy territory by armed forces (whether

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regular or irregular) which as a minimum can be said to have the support of their own government, or at any rate of a government. It will also be necessary to take into account – and to evaluate – factors like the duration of the conflict, the number and command structure of the forces taking part, the territorial scope of the hostilities, the degree of embarrassment caused to the enemy government by the hostilities going on in its territory, the means employed by it to ward off the threat. By such a process of evaluation of relevant factors it may prove possible to arrive at something like an objective distinction between a situation like the initial Indonesian infiltrations in the then Netherlands New Guinea (now West Irian) and the guerrilla-like activities of Pakistani fighters across the Indian border. 1.7 Vagueness of the Resulting Definitions Recapitulating the above, we have not found a definition of guerrilla which is, either, precise, unequivocal, or universally accepted, but rather a variety of meanings of the term. Since in the context of the present inquiry the greatest importance attaches to the legal and humanitarian problems affecting individual human beings, rather than to the political or military-strategic side of guerrilla warfare, I have selected as a starting-point a definition which lays full emphasis on the position of the guerrilla fighters as irregular combatants. It should be added that this viewpoint is no great novelty: Richard R. Baxter wrote already in 1951 that “The word ‘guerrilla’ is most usefully applied in a legal context to armed hostilities by private persons or groups of persons who do not meet the qualifications established in Article 4 of the Geneva Prisoners of War Convention of 1949 or corresponding provisions of the earlier Conventions” (“Spies, Guerrillas and Saboteurs”, in 28 BYIL (1951), p. 323, at p. 333). It was found, moreover, that guerrilla warfare can amount to (or can form part of ) an international armed conflict or an armed conflict not of an international character. The degree of force may even be below the level of either category and, thus, amount to nothing more than an international incident or internal disturbance. None of these different legal categories, however, could be defined with any degree of accuracy or certainty. It need hardly be pointed out that any margin of appreciation which is thus left will be taken advantage of by governments and guerrilla leaders alike, according to their respective interests. This may seriously impede the endeavours of third parties such as the ICRC to intervene in the humanitarian interest. For the time being, however, it seems that this situation cannot be mended in any positive way. Thus, the only available method seems to be the exercise of external pressure (by world public opinion, etc.) on the authorities in question, with a view to making them accept the applicability of the humanitarian laws of war and the combatant status of their opponents in situations which they were at first unwilling to recognize as armed conflicts.

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A matter which needs some clarification at this stage is the significance attached in the foregoing to the concept of “irregular combatants”. This term, like the other expressions discussed previously, can be used in more than one way. It may be a synonym for “combatants not entitled to prisoner of war status” or, more precisely and narrowly, “combatants not entitled to prisoner of war status under Geneva Convention III of 1949.” As noted in para. 7, this was the meaning attached to the term by Richard Baxter (who, it may be added, referred in one breath to “hostilities in arms by persons not of the armed forces” and such hostilities “by persons not entitled to be treated as prisoners of war”). The term, however, can also convey a slightly different meaning (or at any rate be defined from a different point of view), indicating all those persons who take an active part in the hostilities without belonging to the regular armed forces of one of the belligerent parties. What is the exact difference between the two meanings of the term? At first sight, this difference seems quite considerable. It may be argued that in an internal armed conflict only the forces on the side of the lawful government are regular armed forces and the guerrilla fighters, while probably meeting the conditions for prisoner of war status as established in Article 4 of Geneva Convention III of 1949, cannot be regarded as armed forces in the classical sense of the term. Upon closer scrutiny, however, the question appears less easily answered. On the one hand, it is to beg the question to state that the forces of the guerrilla fighters can in no circumstances be put on a par with traditional armed forces: as soon as the insurgent party exercises effective territorial authority in a sufficient degree, it may be contended that nothing is in the way of attributing the character of armed forces to its combat units, even though their methods of fighting the enemy (the lawful government) within its own territory may be unorthodox. On the other hand, so long as this stage has not been reached, it may well be that the guerrilla fighters do not meet the requirements for prisoner of war status either. It seems, therefore, that the answer to the question put depends on the interpretation of the notion of “armed forces” on the one hand, and of the requirements for prisoner of war status on the other. To both these questions of interpretation we shall revert below. 2 Treatment of Guerrilla Fighters 2.1

Questions to Be Discussed

In this chapter, the issue of guerrilla warfare is approached from the angle of the fate of guerrilla fighters as war victims. Their fate will in fact depend, firstly, on whether they are refused or granted quarter; in the latter instance, the further decision will be whether or not to grant them treatment as prisoners of war.

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2.2 Obligation to Give Quarter With respect to the issue of whether or not to grant quarter, two provisions of the 1907 Hague Regulations on Land Warfare are relevant. Article 23(c) prohibits “to kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion.” And Article 23(d) forbids “to declare that no quarter shall be given.” These provisions form part of Section II of the Hague Regulations, entitled “Hostilities”, and they must obviously be understood in that context. In other words, the scope of the provisions is limited to situations constituting “hostilities”. This concept may not be as clear today as it was when these rules were formulated. Hostilities in those days took place in the operations zone. This might be more or less extended both in width and in depth, but usually it was sufficiently well-defined to permit for a distinction to be made between the zone and the rest of the territory. At present, however, and particularly in guerrilla fighting, no such clear distinctions obtain for the greater part of the territory where this type of war is being waged. Guerrilla fighters may be found everywhere and may be engaged in battle throughout the territory. In view of this development, a distinction must be made between three situations: (1), the meeting between guerrillas and the armed forces of the enemy which assumes from the outset – or rapidly acquires – the character of an actual battle; (2), the case of guerrillas caught in a hostile act not amounting to a fight with the enemy armed forces, and who surrender without putting up any armed resistance; and (3), the search operation carried out among the population with a view to detecting any guerrillas who might be hiding among it. To begin with the third supposition, it is submitted that to finish off on the spot any guerrilla fighters so detected and who do not put up any resistance, would be tantamount to plain murder and would be inexcusable in any view. It is moreover hardly to be expected that in this situation a guerrilla fighter would be immediately recognizable as such: he can at most be identified as a suspected person, and the determination that he is indeed a guerrilla fighter can be arrived at only after some sort of an investigation. This implies however that the suspect must be apprehended first and kept in custody – that is, alive – so long as the investigation has not been brought to an end. So, in this situation the question is not whether quarter should be granted to suspected persons who might or might not be guerrilla fighters, but how they should be treated once their status as guerrilla fighters has been established, a question that shall be discussed below. As regards the first situation envisaged above, it is submitted that the quoted provisions of Article 23 apply, either by analogy or directly. I am strongly inclined to accept the latter view, as there is nothing in the text of the Article to suggest that the “enemy” who “has surrendered at discretion” can only be a lawful combatant in the sense of Articles 1 and 2 of the Hague Regulations. Nor would it, to my mind, make any difference whether the surrendering guerrilla fighter is or

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is not recognizable as such by a uniform or other distinctive sign: the mere fact of his armed resistance is sufficient evidence that he belongs to the guerrillas. And, indeed, the act of surrendering does in fact convert him into a momentarily defenceless human being who may be punished, perhaps even with death, for any crimes which he may have committed, but who may not be summarily killed on the spot. My submission may be strengthened by two further arguments. Firstly, to allow the merciless killing of enemies who have put up armed resistance but have surrendered, may adversely affect the morale and discipline of the own armed forces and so prove detrimental to the own cause. Secondly, a sustained policy of refusing quarter will no doubt lead to increased cruelty, ruthlessness and disregard of the laws of war on the side of the guerrilla fighters, whereas the opposite policy might lead to a different result. This leaves the second of the three situations distinguished above: that of guerrilla fighters who are caught in a hostile act not amounting to a fight with the enemy armed forces. When these persons make clear their willingness to surrender at discretion, may they then be killed off nevertheless? Does it make any difference in this case whether they are or are not uniformed or otherwise provided with a distinctive sign? Or does such a difference result from the nature of the hostile act: act of terrorism, act of sabotage, act of reconnoitring or espionage, and so on? I can imagine that the psychological urge towards killing them without mercy may be great in some of these cases. But I cannot imagine that this psychological fact would ever be turned into a rule, to the effect that such killing (which is as well completely unnecessary from a military point of view) would be permissible. In other words, here, as in the previous cases, I see no reason to abandon the principle that quarter should be given to a man who surrenders at discretion. 2.3

Guerrillas Not Regarded as Prisoners of War

What will be the fate of guerrilla fighters who fall into the hands of the enemy and are in fact given quarter? Let us consider first the case of those who are not regarded as prisoners of war. Their legal position will depend on the applicability of Geneva Convention IV of 1949. In the event of an international armed conflict, this Convention extends its protection to those persons “who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals” (Art. 4). A consequence of this formulation is that in case of an essentially internal guerrilla conflict which, however, by virtue of one factor or other has assumed the character of an international armed conflict (Vietnam), the guerrilla fighters who technically are nationals of the lawful government cannot claim the status of protected persons under Article 4, but are

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entirely dependent on such protection as Article 3 extends to “persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause.” Needless to say, the latter Article will be the only basis for the protection of captured guerrillas in the event of an internal armed conflict. (In either case, the applicability of other provisions of the Civilians Convention can be achieved by special agreements to that effect between the belligerent parties; Art. 3(3)). To what extent does this difference affect the situation of the captured guerrillas? In other words, are guerrilla fighters who belong to the category of the protected persons under Article 4 any better off than those who come under the terms of Article 3? 2.4

Effect of Article 3 of the Geneva Conventions

As for the latter category, Article 3 states the principle that they “shall in all circumstances be treated humanely.” Elaborating this principle, it prohibits inter alia the following acts: “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture”, and “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” These prohibitions apply “at any time in any place whatsoever” within the territory of the State concerned. According to these rules, execution of guerrilla fighters is permissible, subject to the requirement of a previous judgment by a competent court duly respecting the essential judicial safeguards (such as notification of indictment, observance of minimum rules of evidence, reasonable opportunity to defend one’s cause). The Article does not allow summary justice falling below these minimum requirements of fair trial. On the other hand, nothing is provided concerning outside supervision or about the composition of the courts, nor again about the acts which are punishable with death. In this respect, it is submitted that many of the acts of which guerrilla fighters are likely to be suspected (such as hostile acts with arms in hands, espionage, sabotage, terrorism and so on) will be widely considered as sufficient to warrant the death penalty. 2.5 Scope of Article 4 of the Civilians Convention With respect to protected persons in the sense of Article 4 (i.e., in the event of an international armed conflict) the situation is rather more complex. Firstly, even the essential principle in Article 27 that protected persons “shall at all times be humanely treated” is found in a section (I) of Part III of the Convention (“Status and Treatment of Protected Persons”) which is entitled “Provisions Common to the Territories of the Parties to the Conflict and to Occupied Territories.”

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In the system of the Convention, this means that the protection offered here extends to “aliens in the territory of a Party to the conflict” (Section II) and to protected persons in “occupied territories” (Section III), and not to enemy aliens in non-occupied enemy territory. In other words, guerrilla fighters who operate in the territory of the enemy State and are captured there, are protected by the Convention, and so are guerrillas captured or held in enemy-occupied territory. Technically, however, the provisions of these Sections do not apply to guerrillas who are captured and held by the enemy in their own territory, so long as that cannot be regarded as occupied territory. This may seem an all too technical approach, but its importance is evident when the situation is considered which arises when an invading army is opposed by guerrilla activities. These may conceivably have the effect of preventing the enemy army from establishing its de facto authority in the invaded territory, so that this does not become occupied territory in the sense of Article 42 of the Hague Regulations. In this situation the guerrilla fighters who fall into enemy hands will not enjoy the full protection extended to protected persons in occupied territory. It is submitted, however, that they will not be entirely without protection. The principles expounded in Article 3 for non-international armed conflict provide at the same time a minimum below which belligerents may not go in other situations either. In support of this argument one may point to Article 158(4) of Convention IV which obligates the belligerents to respect in all circumstances “the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience.” In my view, the protection of these seemingly unprotected guerrillas is even less restricted. While certain rules laid down in Convention IV can in reason be applied only in the relative calm of domestic or occupied enemy territory, other rules – first of all the principle of humane treatment – can equally well find application in the turmoil of the operations zone. The principles and rules of the latter category, it is submitted, are applicable at least by analogy in the situation of non-occupation envisaged here, to all those who, in the words of Article 4, “find themselves, in case of a conflict … in the hands of a Party to the conflict … of which they are not nationals.” To my mind, the strongest argument in favour of this thesis lies precisely in the element of their foreign nationality and, hence, allegiance to the opposite Party from the one which holds them in its power. Admittedly, however, an express provision of this purport would be vastly preferable. 2.6

Guerrilla Fighters Enjoying Full Protection of the Civilians Convention

What is the precise extent of the full protection envisaged in the preceding paragraph? And, in particular, what are the restrictions upon execution of guerrilla fighters?

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In the first place, Article 5 of Convention IV is relevant. Guerrilla fighters will, when apprehended by the enemy, without doubt fall in the category of those protected persons suspected of hostile acts who are not entitled to claim such rights and privileges as would, if exercised in their favour, be prejudicial to the security of the State (or, in the case of occupation, to military security). The Article goes on to state, however, that “in each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention.” In other words: if the detaining Power does not bring the guerrilla fighters to trial, their only protection lies in the prescription that they shall be treated with humanity. Any complaints which they might have in that respect will remain unheard until such time as they are released, as the main right forfeited by them is that of communication (as is expressly mentioned for the case of occupation). The guerrilla fighter who is brought to trial, on the other hand, enjoys the “rights of fair and regular trial prescribed by the present Convention.” The provisions in question are found in Articles 64-76, in the section dealing with occupied territories; Articles 71-76 are moreover applicable by analogy to internees in the territory of the detaining Power (Art. 126). In the context of the present report, only those provisions are relevant which have a bearing on the crucial issue of whether the death penalty may or may not be imposed on those guerrilla fighters who do not enjoy treatment as prisoners of war. In order to find an answer to this question, I shall consider first the case of a guerrilla fighter captured in occupied territory and suspected of hostile acts committed during the occupation. His fate is governed in the first place by Article 68, which severely curtails the power of occupying Powers to impose the death penalty on protected persons. This penalty may not be imposed for “an offence which is solely intended to harm the occupying Power, but which does not constitute an attempt on the life or limb of members of the occupying forces or administration, nor a grave collective danger, nor seriously damage the property of the occupying forces or administration or the installations used by them”: such an offence may at most be punished with internment or simple imprisonment. Indeed, the death penalty may be imposed “only in cases where the person is guilty of espionage, of serious acts of sabotage against the military installations of the Occupying Power or of intentional offences which have caused the death of one or more persons.” While this already significantly limits the power to impose the death penalty, this power is even further restricted by the requirement of publication of penal provisions enacted by the occupying Power prior to their entering into force and the prohibition to give these retroactive effect (Arts. 64, 65) and by the requirement that the offences for which the death penalty is provided “were punishable by death under the law of the occupied territory in force before the occupation began” (Art. 68). The last-mentioned restriction has been the object of a number of reservations, however.

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Furthermore, the death penalty may not be pronounced “unless the attention of the court has been particularly called to the fact that since the accused is not a national of the Occupying Power, he is not bound to it by any duty of allegiance”, nor against an accused “who was under eighteen years of age at the time of the offence” (Art. 68). Suppose that a guerrilla fighter is caught in the act of doing damage to an oil tank of the occupying forces; that he surrenders and is granted quarter, but is not regarded as a prisoner of war: may this person be condemned to death? The answer is yes – that is (to confine ourselves to the main restrictions) if the act is considered to constitute a “serious act of sabotage against a military installation of the occupying Power”; if the occupying Power had previously enacted and promulgated the necessary regulations rendering such acts of sabotage punishable with death, and if also under the legislation in force in the territory prior to the occupation such acts, committed in similar circumstances, were so punishable. Taken together, this amounts to quite a considerable set of limitations indeed. It is submitted that none of these restrictions apply in the event of an invasion countered by a guerrilla movement with such force that the invader does not succeed in establishing an effective occupation, thus creating a situation of prolonged hostilities in the territory. In such a situation the law of combat applies, and the view has been widely defended that this law permits the execution after trial of those found guilty of acts of “unprivileged belligerency”, whether consisting in actual fighting, espionage, sabotage, or terrorism, and no matter how one might regard these acts from a viewpoint less biased than that of the enemy. Once the situation has become one of occupation, Article 70 is applicable. This Article provides inter alia that protected persons shall not be tried for acts committed prior to the occupation, “with the exception of breaches of the laws and customs of war.” The precise purport of this provision seems a matter for debate: does the exception include only such acts as would constitute war crimes when committed by regular combatants or does it also embrace the acts of the irregular combatant? The latter interpretation, which may be closest to State practice, would of course imply that a guerrilla fighter can be condemned to death for having acted as an irregular combatant: indeed, a case of “unprivileged belligerency” in the literal sense. For the rest, the trial of the persons considered in this paragraph is governed by the rules of fair trial and outside supervision as expounded in Articles 71-76. For the zone of guerrilla operations which cannot be considered as occupied territory, a reservation must be made with respect to all the detailed, non-principal provisions and moreover to all references to the Protecting Power. 2.7

Non-advisability of a Policy of Systematic Executions

Thus far, the question has been examined of whether it is legally permissible to execute, after due trial, guerrilla fighters who are not treated as prisoners of war.

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The answer was that such execution is generally speaking permissible, although the power of belligerents in this respect is severely curtailed especially as concerns occupied enemy territory. Quite a different matter is whether the execution of members of this group is a wise thing to do. It is submitted that a distinction should be made here between a policy of systematically executing guerrilla fighters as a matter of principle, and incidental executions of those guilty of particularly revolting crimes. The opportunity of the latter type of executions is a matter of assessment in the light of the prevailing situation. A policy of frequent and systematic executions, however, seems as objectionable as would be a practice of refusing quarter: it will merely engender hatred and lead to increased ruthlessness and disregard of the laws of war on the side of the guerrillas. In this respect, a passage may be quoted of the ICRC report to the Istanbul Conference (Reaffirmation, p. 118): “The principle of non-execution of prisoners seemed to the experts a measure, even if it failed to correspond to the positive law applicable, which would enable avoiding that either side resort to extremes.” 2.8

Guerrilla Fighters Accorded Treatment as Prisoners of War

The next question concerns the position of guerrilla fighters granted treatment as prisoners of war. To the extent that this treatment is accorded on a non-obligatory basis, there is arguably no real difference with the situation discussed above, as it is within the power of the detaining Power in respect to acts committed prior to capture by prisoners of this category simply to leave out of consideration the rules pertaining to the institution of criminal proceedings against prisoners of war as these are embodied in the Prisoners of War Convention. As regards those guerrillas who are actually accorded prisoner of war status in virtue of the rules in force, Geneva Convention III of 1949 applies in its entirety. This Convention, it should be noted, does not exclude prosecution for acts committed prior to capture: Article 85 provides that in that event the prisoners “shall retain, even if convicted, the benefits of the present Convention.” A number of States, however, have made a reservation with respect to the obligation to extend application of the Convention even to convicted prisoners. This reservation, the scope of which is widened by the operation of the principle of reciprocity, may have an important effect precisely in case of condemnation to death. For it deprives the convict of the “final guarantee against a judgement based on the circumstances of the moment, too often affected by emotional considerations” (Commentary to the Convention, edited by Jean S. Pictet and published by the ICRC, 1960, p. 475) which lies in the combined effect of Article 101 prescribing a delay of six months before the execution of the sentence, and Article 107 which obligates the detaining Power to address a detailed communication concerning the sentence to the protecting Power in the event, inter alia, of a death sentence.

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In case of a prosecution for acts committed prior to capture, the question of the applicable law seems to be governed by two articles: viz., Article 99, which provides that “[n]o prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law, in force at the time the said act was committed”, and Article 87 providing that only those penalties are allowed which are “provided for in respect of members of the armed forces of the [Detaining] Power who have committed the same acts.” Taken together, these articles would allow the death penalty for any acts amounting to war crimes under the law of war, unless the law of the detaining Power does not threaten that penalty for similar acts when committed by members of its own armed forces. The question may be raised whether Article 87 has decisive importance here. Some doubt may arise when it is realized that among the categories of persons who according to Article 4 must be afforded treatment as prisoners of war, are such non-combatant groups as members of crews of merchant vessels. While acts of active belligerency committed prior to capture by persons belonging to this category, e.g. initiating offensive actions, are likely to be regarded as grave war crimes, similar acts when committed by members of the armed forces would constitute normal, non-punishable acts of warfare. In this case, an automatic application of Article 87 would lead to the unlikely result that the crew members would have to go unpunished, on the ground that the punishment “provided for in respect of members of the armed forces of the [Detaining] Power who have committed the same acts” would be exactly nil. Does not this result, which the contracting Parties can hardly be imputed to have intended, strongly suggest an interpretation of Article 87 to the effect that its scope is limited to judicial proceedings against captured members of the enemy armed forces? It is suggested that this question may be answered along the following lines. The categories of persons enumerated in Article 4A can be distinguished in two main groups: those who are characterized by their combatant character (nrs. 1, 2, 3, and 6) and those who are essentially non-combatants (nrs. 4 and 5). It appears not open to doubt that in drafting Article 87 the non-combatant categories have been completely overlooked. The terminology used in Article 87 may even suggest that combatant categories other than the members of regular armed forces have been overlooked as well. On the other hand, so far as acts committed by combatants are concerned, the text of the Article could not very well refer to any category but the armed forces of the detaining Power: it could hardly be expected to mention as well a possible levy en masse or resistance movement springing up among the own population. So, it appears that the exclusive reference in Article 87 to the members of the armed forces of the detaining Power need not be interpreted so restrictively as to imply that the Article cannot be applied in relation to a category like the members of organized resistance movements. It should be realized, however, that to accept the unrestricted applicability of this Article to prisoners of the category under consideration, with the ensu-

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ing limitation on the powers of the detaining Power to mete out punishment, is tantamount to accepting that combatants of this category are placed on the same footing as members of the armed forces for the purpose of assessing their belligerent acts. In other words, they may be irregular combatants, but their actions cannot justifiably be characterized as “unprivileged belligerency” any longer. In view of this conclusion, particular importance attaches to an examination of the conditions which guerrilla fighters must fulfil in order to be entitled to the status of “privileged belligerents.” 3

Requirements for “Privileged Belligerency” of Guerrilla Fighters 3.1 The Conditions Enumerated in the Prisoners of War Convention

The most recent, authoritative statement of the requirements for “privileged belligerency” is found in Article 4 of the Prisoners of War Convention of 1949. Among the various categories enumerated in that Article, the one most likely to be relevant to the status of guerrilla fighters is the category defined under A(2) as the “Members of other militias and members of other volunteer corps” (i.e., other than those forming port of the armed forces of a Party to the conflict) “including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war.” This is quite an impressive set of conditions, and the question has come up time and again whether guerrillas met, and could meet, all these requirements. It is not my intention, however, to give a survey of the extensive literature on this subject: some few references may suffice. Two of these may be mentioned at the outset: the previously quoted report of the ICRC (Reaffirmation, pp. 112-121), and the judgment dated 13 April 1969 of a military tribunal in Israel, in the matter of the Military Prosecutor v. Omar Mahmud Kassem and others. 3.2 Requirement of Belonging to a Party to the Conflict The first condition which the groups defined in Article 4A(2) must fulfil, consists in “belonging to a Party to the conflict.” As it is stated in the quoted Commentary to the Convention, p. 57:

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Chapter 20 It is essential that there should be a de facto relationship between the resistance organization and the party to international law which is in a state of war, but the existence of this relationship is sufficient. It may find expression merely by tacit agreement, if the operations are such as to indicate clearly for which side the resistance organization is fighting. But affiliation with a Party to the conflict may also follow an official declaration, for instance by a Government in exile, confirmed by official recognition by the High Command of the forces which are at war with the Occupying Power. These different cases are based on the experience of the Second World War, and the authors of the Convention wished to make specific provision to cover them.

Evidently, the wish of the authors of the Convention to cover in particular the situation experienced in the Second World War, may have led to a formulation which is not in the first place adequate to cover present-day situations of guerrilla warfare. In this respect, the experts consulted by the ICRC “were of opinion that this condition [of belonging to a Party to the conflict] was not easy to fulfil in some guerrilla conflicts (not only internal conflicts but those where a belligerent does not admit it is a Party to the conflict and the other Party uses this as a pretext for refusing to recognize that the guerrilla movement satisfies this condition). Generally speaking, however, it was recognized that international law excluded ‘private war’” (Reaffirmation, p. 115). This amounts to recognition by the experts that the condition must be retained. In the case of the Military Prosecutor v. Omar Mahmud Kassem and others, the accused belonged to the Popular Front for the Liberation of Palestine, one of the several Arab (or Palestinian) guerrilla groups operating against Israel. Emphasizing “the condition that the irregular forces must be affiliated to a belligerent party” as the “most basic condition of the right of combatants to be considered upon capture as prisoners of war”, and finding from the available evidence that this particular organization did not fulfil this condition, the tribunal concluded that “[n]o Government with which we are at war accepts responsibility for the acts of the Popular Front for the Liberation of Palestine.” It should be noted that the situation in the Middle East is again different from the situations envisaged by the experts: it is neither an internal conflict, nor do the States opposing Israel refuse to admit that they are Parties to the conflict; what they refuse to acknowledge (and even on occasion strongly deny) is that the Popular Front is affiliated to them. This seems to stand in the way even of a tacit agreement of the kind referred to in the quoted passage of the Commentary. On the other hand, one hesitates to characterize the operations of this and the other Arab guerrilla groups as a “private war”. It seems therefore that the operation of the rule is in this case not very satisfactory. It was perhaps this same feeling which induced the Israeli tribunal to “display extreme liberalism” and to try “even with regard to such an illegal body to proceed on the assumption that each of its members is entitled upon capture to be treated as a prisoner of war if that body

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fulfils the four basic conditions” enumerated in the quoted text of Article 4A(2); an attitude for which the tribunal should certainly be commended. 3.3 The Responsible Commander As regards the first of the four conditions set out in the quoted Article, viz., that of being commanded by a person responsible for his subordinates, the report of the ICRC states that “even if resistance movements are badly organized at the beginning of their operations and cannot easily satisfy the conditions laid down, this requirement of a certain degree of organization and a responsible leader seemed essential to the experts.” To this opinion of the experts, the ICRC adds the following in a footnote: “This is the most important condition, which in a way guarantees the legality of the armed struggle. It is moreover entirely compatible with the very nature of guerrilla warfare” (Reaffirmation, p. 116). While one can accept this view, it is doubtful that the Israeli military tribunal correctly interpreted the condition at issue when it considered that “[it] has not been proved to us that such a commander exists or that he, if he exists, is responsible for his subordinates before military courts.” The Article itself does not indicate in any manner whatsoever how the responsibility of the commander should be construed, and it seems more or less arbitrary to narrow it down to a responsibility “before military courts” (presumably of the Party to the conflict to which his movement is affiliated). From information in the news media one would gather that in any event the Front has a headquarters which assumes (and sometimes eagerly claims) responsibility for certain actions. This, however, seems not sufficient to meet this particular condition. 3.4 The Fixed Distinctive Sign The second condition is that there should be a fixed distinctive sign recognizable at a distance. The ICRC report notes that this “seemed to the majority of the experts somewhat difficult to fulfil. But as the World Veterans Federation had said ‘this sign should be distinctive to enable identification in relation to the peaceful population … fixed in the sense that the resistant should wear it throughout the operation in which he is taking part and … recognizable at a distance by analogy with uniforms of the regular army’” (Reaffirmation, p. 116). In actual fact, guerrilla fighters often wear some kind of uniform, which may be more or less suited to distinguish them from civilians. Thus, members of the Viet Cong operating in South Vietnam generally wear a black pyjama-like uniform very similar to the peasant’s wear. The United States authorities have not used this as an argument to deny combatant status to the persons concerned, however. The members of the Popular Front for the Liberation of Palestine, on the other hand, had infiltrated into Israel-occupied territory wearing dark green uni-

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forms and mottled peaked caps. One witness, a sergeant of the Israeli army, had testified that at a distance of 900-1000 metres he had not recognized the infiltrators as non-civilians. In spite of this testimony the tribunal considered that “we are prepared to concede that civilians resident in the area of the encounter with the Israeli forces do not usually wear green clothes or mottled peaked cops and that the accused, therefore, fulfilled the condition under reference.” This, again, appears a satisfactory decision, in conformity with modern views concerning the obligation to wear uniform. 3.5 The Obligation to Carry Arms Openly Thirdly, guerrillas must “carry arms openly.” This can hardly be interpreted to mean that the arms carried must be constantly visible: a more probable interpretation is that accepted by the World Veterans Federation and not contested by the experts consulted by the ICRC, to the effect that “when the resistance fighter was engaged in operations, he should carry the weapons in his possession in a similar way to members of the regular forces” (Reaffirmation, p. 117 and Annexes, p. 070). Crucial in this formulation are of course the words “when the resistance fighter was engaged in operations.” I would be inclined to interpret these to mean: when engaged in operations which can be expected to involve the use of weapons. The argument of the Israeli tribunal in this respect lacks clarity. A witness for the prosecution had testified that “[t]he members of the organization sometimes wear military uniforms and carry arms openly outside inhabited areas and sometimes do not wear uniforms and do not carry arms openly for fear of being caught.” The tribunal considered furthermore that: Obviously, while in contact with Israeli troops the accused used their weapons, but, on the other hand, the presence of arms in their possession was not established until they began to fire at the Israeli forces, and it should be recalled in this connection that witness No. 1 for the prosecution, Sergeant Erdos, said that when he saw the two persons in green he did not identify them as soldiers and did not see their weapons and therefore walked on openly, exposed, until shots were fired by the accused.

The question here is whether an attempt at infiltration into enemy (or, as in this case, enemy-occupied) territory should be regarded as an “operation” in the sense as defined above. I have some difficulty with the following sentence in the judgment too: “The phrase ‘carrying arms openly’ should not be understood to mean carrying arms in places where they and the persons carrying them cannot be seen, nor does it mean carrying arms, such as Kalatchnikov assault rifles, whilst using them during an engagement.” I agree that little, if any, relevance attaches to carrying arms in the most open manner in places where the persons thus displaying their weapons

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are out of sight of the enemy. On the other hand, the denial that “carrying arms … whilst using them during an engagement” could be sufficient to meet the test of carrying arms openly needs explanation. It should be added that the tribunal in its final conclusion on this score does not refer to the individual persons before it, but to the organization as a whole: “It does not seem to us, therefore, that the members of the Front for the Liberation of Palestine can be said to carry arms openly.” This shows that the references to the mode of acting of the accused merely served (in the eyes of the tribunal) to corroborate the evidence concerning the organization as a whole. 3.6 The Obligation to Conduct Operations in Accordance with the Laws and Usages of War A last requirement for guerrillas to be entitled to recognition as “privileged belligerents” is that of conducting their operations in accordance with the laws and usages of war. Is this a reasonable requirement: can guerrillas be expected to conduct their operations in that manner? This question has found widely differing answers. Thus, one author asserts that, there is nothing in the guerrilla form of warfare … which contravenes the norms of international law. Surprise and swiftness; the lightning blow and quick withdrawal in the face of heavy odds; the nocturnal attacks and the tactic of seeming to come from the east and attacking from the west; the strategy of attacking the hollow avoiding the solid – in fact, the whole strategy and tactics of guerrilla warfare are an art of combat waged by the weak to overcome the strong. There is nothing in international law which prohibits, to use Calvert’s phrase, the surgical application of needle-tipped force to the vital points of the opponent’s body politic. The tactics in this kind of warfare can very well be subsumed under the rules relating to ruses and stratagems in international law. Once it is admitted that guerrilla warfare is not a ‘wild cat scrimmage’ and that it is a highly developed art which depends for its success upon the support of the masses, it is easy to reconcile the stories of atrocities and sacrileges. They are the handiwork of a few bandits, anarchists, disappointed militarists, and vagabonds. They must be singled out and tried for crimes against the laws of war and for crimes against humanity. But the whole lot of guerrilla cannot ipso facto be treated as criminals. (R. Khan, “Guerrilla Warfare and International Law”, in 9 International Studies (1967) p. 103, at pp. 113-114).

While it is not contested that this may be a correct assessment of the possibility for guerrilla fighters to conduct at least part of their operations (“guerrilla tactics”) in conformity with the laws and usages of war, it seems on the other hand a gross underestimation of the real problems attending guerrilla warfare in

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a wider sense and which cannot be summarily dismissed as the “handiwork of a few bandits, anarchists, disappointed militarists, and vagabonds.” For, in the first place, the suggestion is inaccurate that guerrilla fighters are generally law-abiding, while the “stories of atrocities and sacrileges” are exclusively accountable to a category of criminally inclined persons indicated as “bandits” etc.: acts of terrorism or sabotage are committed by the same guerrilla fighters who at another time are assigned more traditional jobs. And, secondly, guerrilla warfare does give rise to certain specific problems of a legal nature. To name only a few: can the swiftness and stealth characteristic of many guerrilla operations be reconciled with the obligation to give quarter and to treat prisoners humanely? Can the vital need of information be satisfied without recourse to a measure like the torture of prisoners? Where does the dividing-line run between ruses of guerrilla warfare and treacherous conduct? 3.7 Terrorism The situation envisaged by Khan, it should be noted, was the infiltration of Pakistani guerrilla forces into Indian territory: a primarily military, international operation, though carried out with the aid of guerrilla tactics. Other situations are perhaps more suited to bring to light the various difficulties involved in guerrilla warfare. Thus, one of the experts consulted by the ICRC emphasized the point that in the first stage of a guerrilla movement developing in the territory of a State the movement, still being weak, “will be tempted to resort to extremist methods” (Reaffirmation, p. 115) and that in that phase terrorism “was perhaps the only arm available to guerrillas combating a Government preventing them from employing other methods. To condemn terrorism without appeal would perhaps be equivalent, according to this expert, to depriving guerrillas of their only means of combat, and would therefore lack realism” (p. 120). This opinion was not shared by the other experts. Indeed, the majority held the view “that terrorism in the sense of indiscriminate attacks against the civilian population, should be condemned and that it outlawed guerrilla forces” (ibid.). The majority opinion, it should be noted, does not condemn attacks directed against particular members of the civil population; nor could it very well be otherwise: while the precise definition of the notion of “military objective” is a problem for which no final solution has yet been found, it seems hard to deny that certain key decision makers among the population can justifiably be considered as military objectives in any kind of warfare, let alone in guerrilla warfare. The condemnation of indiscriminate terrorism is undoubtedly correct. In support, one may point to GA Resolution 2444 (XXIII) which affirmed the principle, applicable in all armed conflicts, that “it is prohibited to launch attacks against the civilian populations as such.” This principle also played an all-important role in the judgment of the Israeli tribunal in Military Prosecutor v. Omar Mahmud Kassem and others, when it found that “the body which calls itself the

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Popular Front for the Liberation of Palestine acts in complete disregard of the international consuetudinary law accepted by civilized nations”, as a number of attacks claimed by that organization “were all wanton acts of terrorism aimed at men, women and children who were certainly not lawful military objectives. They are utterly repugnant to the principles of international law, and … crimes for which their perpetrators must pay the penalty. Immunity of non-combatants from direct attack is one of the basic rules of the international law of war.” 3.8 Treacherous Conduct Having thus disposed of the extremes, one is left with the less extreme problems, some of which were enumerated at the end of section 22. These problems may be divided into two categories: problems of interpretation of existing law (such as the distinction between ruses of war and treacherous conduct) and problems of a practical nature (such as the actual treatment of prisoners). As regards treachery, the experts consulted by the ICRC suggested replacing the term by “perfidy” and they pointed out that “it is no longer so much a matter of obtaining a spirit of chivalry on the battlefield or an ideal of loyalty, as of denouncing everything that can make a return to peace more difficult.” Among these peace-thwarting modes of conduct they mentioned the “abusive employment of the white flag and above all of the red cross emblem”; but they were divided on such a crucial issue as the wearing of enemy uniform prior to battle (Reaffirmation, pp 80-81). I am inclined to agree with the experts that the necessity of an ultimate restoration of peace requires that a human attitude be preserved towards the enemy and thus dominates the issue of treachery. This basically humane and non-treacherous attitude is moreover urged by another argument, of a more trivial nature: viz., that guerrilla fighters must expect the enemy to base his attitude in this respect on reciprocity; as the experts pointed out elsewhere: “Guerrillas and their opponents should conform to the same rules” (p. 118). Even so, it is evident that a further elucidation of the concept of “treachery” or “perfidy” would certainly be welcome. For, while it may be true that, as the ICRC observes (ibid.), either side in guerrilla fighting might be inclined to use the too precise character of specific rules as a pretext to avoid their application, a principle to the effect that everything should be avoided which can hamper the restoration of peace is altogether too vague. 3.9 Treatment of Prisoners The more practical problems attending (or alleged to attend) guerrilla warfare, are also dealt with in the report of the ICRC. In respect to these, the attitude of the experts can be summarized as follows: guerrillas in order to be entitled to a position of “privileged belligerency” are required to recognize the obligations

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resulting from the principles of the law of war and in particular the humanitarian principles; and for such problems as might arise in this connection, practical solutions should be sought (Reaffirmation, pp. 118-119). One such practical solution submitted by the ICRC and supported by the experts, concerns the issue of the treatment of prisoners in the hands of guerrillas. The point is emphasized that, no matter how extraordinary the combat conditions of guerrilla fighters may be, they are precluded from killing prisoners or seriously injuring their health. Instead, they “should … (as has occurred in some recent conflicts) after having been disarmed, be released where there are no facilities to care for them. They could also be handed over to an Ally or a neutral State, as authorized in the IIIrd Convention” (Reaffirmation, p. 119). Such solutions might indeed be in the enlightened self-interest of the guerrillas, as they might contribute to weakening the morale and fighting spirit of the enemy armed forces. 3.10

Information

A practical problem not touched upon in the report of the ICRC concerns the issue of information. There are, of course, many ways of gathering information which are tolerated by the law of war. Some methods are prohibited, however. Thus, Article 17 of the Prisoners of War Convention provides that “[n]o physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.” Similarly, Article 31 of the Civilians Convention provides that “[n]o physical or moral coercion shall be exercised, against protected persons, in particular to obtain information from them or from third parties.” In guerrilla warfare even more than in conventional armed conflicts the tendency will be strong to disregard these prohibitions, not only on the side of the guerrilla fighters but equally on the side of the counter-guerrilla forces; for information, no matter how secured, is of vital importance for the success of any guerrilla or counter-guerrilla operation. I see no practical way out of this dilemma, other than upholding the obligatory force of the quoted rules irrespective of whether a conflict is of the guerrilla type, and accepting that the chance of the rules being violated is rather more pronounced in the event of a guerrilla than in case of other types of armed conflicts. In addition to this mainly negative conclusion, the point should perhaps be emphasized that violations of the rules in question can be of varying gravity: to my mind, while any form of coercion with a view to securing information amounts to a violation of the fundamental rights and freedoms of the human beings involved, there is a wide difference between methods of torture that bring the victim on the verge of death and perhaps invalidate him for life, and methods consisting in the exposure to “unpleasant or disadvantageous treatment of any

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kind.” It is of course realized that such distinctions are dangerous, as they tend to diminish the awareness of the reprehensible character even of the lesser violations. On the other hand, if violations should be expected anyway, then it seems vastly preferable that in any event the resort to the more injurious methods of torture be avoided. 3.11 The Conditions Rest upon the Guerrilla Force as a Body Two facts stand out from the foregoing paragraphs: (1) it is not impracticable for guerrilla fighters to meet the conditions for “privileged belligerency” set out in Article 4 of the Prisoners of War Conventions, and (2) a group of experts like those consulted in February 1969 by the ICRC were not prepared to conclude that any concessions should be made to guerrilla fighters in this respect, other than that the emphasis should be on general principles rather than detailed rules. This viewpoint seems acceptable, provided that it does not lead to the conclusion that those guerrilla fighters who fail to meet the said conditions are therefore outlaws at the mercy of the enemy. Another matter of particular importance in the present context concerns the interpretation of the phrase in Article 4A(2) “provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions” (etc.). The question here is whether this phrase implies that the conditions must be fulfilled by the individual member of such groups who falls into enemy hands, or by the groups as such, or without exception by all their members. The first interpretation, it is submitted, is contradicted by the clear terms of the quoted text, which without any doubt refers to collectives rather than to individual captured members. Moreover, the interpretation would lead to the unacceptable result that the position of each captured member would be made dependent on his personal conduct rather than on his belonging to the group, thus restoring the old, but rightly abandoned, maxim that he who violates the law of war cannot himself claim the protection of the law of war. On the strength of this argument it is submitted that the Israeli military tribunal was wrong when it considered “that, in order to be entitled upon capture by enemy forces to be treated as a prisoner of war, a member of an underground organization is undoubtedly required to fulfil all the four abovementioned conditions and that the absence of only one of them is sufficient to make him an unlawful combatant, not entitled to be regarded as a prisoner of war.” Can the last bit of the quoted sentence be correct? This would amount to the assertion that a war crime committed even by one member of such an organization would have the effect of depriving all members of their status as “privileged belligerents”. To my mind, the suggestion of such an extreme form of collective responsibility is so evidently without merit that any further argumentation is superfluous.

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This leaves the middle of the three aforementioned interpretations, expressed by the Israeli tribunal elsewhere in its judgment in the following terms: “… each of its members [i.e., of a body of irregulars] is entitled upon capture to be treated as a prisoner of war if that body fulfils the four basic conditions…” This, in our submission correct, interpretation of Article A(2) implies that an individual member of such an organization does not lose his right to prisoner of war status when it appears that he himself does not fulfil all the four conditions. Even less does he lose this right on the mere ground that another member of the organization has failed to meet all those conditions. The only decisive criterion is whether the organization as such, viewed as a body, can be said to fulfil the conditions. In other words, the position of the individual members will depend on the general policy of the organization as this is evidenced by its activities, or on the consistent practice of a significant part of its members. Applying this test to the facts as these were presented to it, the Israeli tribunal could be justified in finding “that the body which calls itself the Popular Front for the Liberation of Palestine acts in complete disregard of the international consuetudinary law accepted by civilized nations”, and in rejecting on that ground the submission of Omar Mahmud Kassem and his colleagues that they were entitled to be treated as prisoners of war. 3.12 The Classification of Detainees in South Vietnam Classification of detained persons as prisoners of war or otherwise developed into a major problem in the guerrilla war waged in South Vietnam. In order to meet this problem, the U.S. Military Assistance Command, Vietnam, on 27 December 1967 issued a directive that in its Annex A provided “Criteria for Classification and Disposition of Detainees” (62 AJIL (1968), p. 766). In para. 3 of this Annex, the enemy forces were distinguished in the following categories: a.

b.

c.

d.

Viet Cong (VC) Main Force (MF). Those VC military units which are directly subordinate to Central Office for South Vietnam (COSVN), a Front, Viet Cong military region, or sub-region. Many of the VC units contain NVA personnel. Viet Cong (VC) Local Forces (LF). Those VC military units which are directly subordinate to a provincial or district party committee and which normally operate only within a specific VC province or district. North Vietnamese Army (NVA) Unit. A unit formed, trained and designated by North Vietnam as a NVA unit, and composed completely or primarily of North Vietnamese. Irregulars. Organized forces composed of guerrilla, self-defense, and secret self-defense elements subordinate to village and hamlet level VC organizations. These forces perform a wide variety of missions in support

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(1)

(2)

(3)

493

of VC activities, and provide a training and mobilization base for maneuver and combat support forces. Guerrillas. Full-time forces organized into squads and platoons which do not necessarily remain in their home village or hamlet. Typical missions for guerrillas include propaganda, protection of village party committees, terrorist, and sabotage activities. Self-Defense Force. A VC paramilitary structure responsible for the defense of hamlet and village in VC controlled area. These forces do not leave their home area, and they perform their duties on a part-time basis. Duties consist of constructing fortifications, serving as hamlet guards, and defending home areas. Secret Self-Defense Force. A clandestine VC organization which performs the some general function in Government of Vietnam (GVN) controlled areas. Their operations involve intelligence collection, as well as sabotage and propaganda activities.

According to para. 4, detainees of the following categories would be classified as prisoners of war: (1) (2)

(3)

A member of one of the units listed in paragraph 3a, b, or c, above. A member of one of the units listed in paragraph 3d above who is captured while actually engaging in combat or a belligerent act under arms, other than an act of terrorism, sabotage, or spying. A member of one of the units listed in paragraph 3d above who admits or for whom there is proof of his having participated or engaged in combat or a belligerent act under arms other than an act of terrorism, sabotage, or spying.

To what extent does this directive fit in with the Prisoners of War Convention? A preliminary remark is that at the time the directive was issued, the armed conflict in Vietnam could be said to have assumed an international character, so that the Geneva Conventions were applicable in toto. This view was expressly confirmed in another directive of the same U.S. Command, dated 15 March, 1968 (62 AJIL (1968), p. 768, at p. 769: para. 5 [“Background”] under b). Consequently, the applicable provision here was Article 4. The directive draws a clear distinction between two main categories: members of the VCMF, VCLF, and NVA on the one hand, and irregulars on the other side. The former categories are without reserve classified as prisoners of war; in the system of the Convention, this presumably signifies that they were regarded as “members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.” (Article 4A(1)) As for the category of the “irregulars”, no such unreserved classification is provided: they would only be granted treatment as prisoners of war if they were

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not suspected of having committed acts of terrorism, sabotage or spying. Does this mean that here Article 4A(2) was applied? According to the terms of the directive, the irregulars certainly were regarded as “organized” groups, nor was their allegiance to a Party to the conflict thrown into doubt. Evidently, however, not all members of these groups did in the eyes of the United States authorities fulfil the condition of “conducting their operations in accordance with the laws and customs of war.” As argued in para. 26, such a situation may lead to one of two alternative conclusions: either, that the organization is disqualified and its members are not entitled to prisoner of war status, or that the members are so entitled but may be held accountable for their individual acts. On one interpretation, the directive may be construed to fit in with this view: viz., when it is assumed that the “irregulars” were regarded as disqualified as a body and that individual members who were not suspected of acts of terrorism (etc.), were granted prisoner of war treatment on a purely voluntary, nonobligatory basis. On another interpretation, the directive was based on the view, rejected in para. 26, that only those members of a body of irregulars are entitled to prisoner of war status who individually fulfil all the conditions enumerated in Article 4A(2). Assuming, however, that the first-mentioned interpretation is correct, it should be conceded that the United States adopted a remarkably liberal attitude towards the problem of interpreting Article 4 of the Prisoners of War Convention in the light of modern conditions of guerrilla warfare. 4

Conclusions

In conclusion, it is submitted that: – the provisions of the Prisoners of War Convention, taken together, not only have the effect of granting prisoner of war status to members of irregular forces meeting the conditions enumerated in Article 4A(2), but also afford them a position of “privileged belligerency”; – the formulation of Article 4A(2) has been influenced considerably by the experiences of the Second World War, but the text as it stands lends itself to interpretations meeting modern forms of guerrilla warfare; – it is possible, though certainly no light task, for guerrilla fighters to fulfil the conditions set forth in Article 4A(2), provided in particular that the obligation to respect the laws and customs of war is interpreted to refer to general principles rather than detailed rules of warfare; – the test provided in Article 4A(2) should be applied to guerrilla forces as organized bodies, not to individual guerrilla fighters: while the latter may be held individually accountable for such of their acts as constitute war crimes, they may not on that account be deprived of their status as prisoners of war and “privileged belligerents”; – while under the terms of the Prisoners of War Convention the detaining Power is not prevented from punishing prisoners of war for war crimes com-

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mitted prior to capture, it is a moot point whether this is a wise thing to do; in any event, the authorities who have to fight a guerrilla movement must be strongly advised against pursuing a policy of frequent application of the death penalty to guerrilla fighters who are in their hands as prisoners of war: such a policy will almost certainly have a reverse effect and cause the “irregularity” of guerrilla warfare to become, if anything, even more irregular.

Chapter 21 “Guerrilla” and “Terrorism” in Internal Armed Conflict*

The terms “guerrilla” and “terrorism” are used so widely by journalists, commentators, and politicians in recent times, that they have become household words. Nevertheless, these terms have not acquired any precise meaning from such daily use that would enable us to determine with some degree of certainty whether a given act falls into the category of guerrilla warfare or of terrorism. The general view is that “guerrilla” is used popularly as a synonym for “good guy”, while “terrorism” refers to the actions of the “bad guys”. This distinction depends on the side with which one sympathizes. The popular distinction, therefore, is particularly inappropriate for our present purpose, which is to discover the legal distinction, if any, between guerrilla warfare and terrorism in the context of the rules of international humanitarian law applicable in non-international armed conflicts. Another distinction, which might appear to be of somewhat greater relevance, is often drawn between the two terms depending on the level of violence in a particular internal conflict. This distinction rests on the observation that insurrectional movements usually go through an initial stage of small-scale, scattered violence, then enter into a phase of somewhat more organized, sustained military activity, and may eventually reach the stage of fairly conventional warfare. In this three-tiered analysis, acts taking place in the initial phase, including assassinations of central or local leaders or police officers, raids on banks, acts of sabotage, and indiscriminate attacks on civilians, are often called “terrorist” acts. The term “guerrilla warfare” is reserved for acts taking place in the second phase, in which the actions of the insurgents include hit-and-run attacks on military outposts and barracks, laying ambushes, and other actions designed to harass the enemy armed forces, to cut off their supply lines and to interdict, if only temporarily, the use of parts of the territory by the enemy. Actions of the first, or “terrorist,” type may continue in this phase as well. The scope of this enquiry limits our consideration of situations of internal unrest to those that have reached the level of an “armed conflict”. While the * 1

Published earlier in 33 The American Law Review (1983) pp. 67-81. “Parties, of course, piously condemn their opponent’s resort to such ‘outrageous, shocking’ acts [of terrorism] while cloaking their own conduct in euphemisms that deceive only those who wish to be deceived.” J. Bond, The Rules of Riot, Internal Conflict and the Law of War (1974) p. 84.

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term “armed conflict” was left undefined in Common Article 3 of the Geneva Conventions of 1949, it was widely understood to exclude situations of political unrest accompanied by nothing more than sporadic acts of violence. Article 1(2) of Additional Protocol II, confirming this interpretation, excludes from its material field of application “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.” Only armed conflicts in which the insurgents constitute at least “organized armed groups which, under responsible command, exercise such control over a part of [the territory of a State Party to the Protocol] as to enable them to carry out sustained and concerted military operations and to implement this Protocol” are included in its material field of application; thus

2

3 4

Article 3 common to the four Geneva Conventions of 1949 provides for respect of basic standards of humanity in non-international armed conflicts. The text reads as follows: In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict. See Protocol Additional to the Geneva Conventions of 1949 (Protocol II), 16 ILM (1977) p. 1442. Ibid. Art. 1(2).

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Article 1(1). Although the conditions for recognition of a series of events as an armed conflict under Protocol II may be too stringent, it is clear that the situations excluded from coverage by Article 1(2) are precisely those situations that constitute the “terrorist” phase in the above analysis. To the extent that political scientists and modern historians use “terrorism” to distinguish this initial, nonarmed conflict phase from the subsequent “guerrilla” phase, this definition of terrorism cannot serve the purpose of our enquiry. The parts of international law and the writings of international lawyers that deal with international terrorism as a problem related to questions of criminal jurisdiction, extradition, asylum, and the like, similarly are not useful to this analysis. The definitions of “terrorism” found in treaties, judicial decisions and legal writings are entirely a function of the peculiarities of those branches of international law, and they cannot simply be transplanted to the totally different sphere of international humanitarian law applicable in internal armed conflicts and to the specific question of the distinction between guerrilla warfare and terrorism. Few lawyers have dealt with this question in the course of their writings and stated the characteristics that in their opinion distinguish the acts of terrorists from the acts of guerrillas. One of these writers, James Bond, discusses the claim “to use terror tactics” as the first of a series of claims “to conduct hostilities unrestrained by the rules applicable to international conflict.” He quotes with apparent approval a definition of “terror” offered by Thomas P. Thornton: “a symbolic act designed to influence political behaviour by extranormal means, entailing the use or threat of violence.” Bond regards this definition as broad enough to cover a wide variety of actions, ranging from acts of sabotage and political assassinations of selected individuals to conspicuously indiscriminate terror tactics. Curiously, this element of symbolism does not play any part in his subsequent evaluation of these various acts. Rather, the determining factor in his definition appears to be whether an act violated basic precepts of international law as reflected in common Article 3. Thornton in effect uses his definition to distinguish the terrorist from the guerrilla in an entirely different manner. In his view, the crucial question is whether an act is symbolic – for example, whether its effect is largely indirect, causing fear, anxiety, or despair. If so, it is a terrorist act. Otherwise, it is an act 5 6

7

8 9

Ibid. Art. 1(1). See J. Bond, supra note 1, at p. 80. The other claims listed under this heading are: to use chemical and biological weapons, to employ strategic bombing, and to commit reprisals. Ibid. at pp. 84-102. Ibid. at p. 84 (quoting Thornton, “Terror as a Weapon of Political Agitation”, in H. Eckstein (ed.), Internal War (1964) p. 71, at p. 73). The definition is there erroneously ascribed to Richard Falk. Ibid. at pp. 84-91. Thornton, op. cit. note 7, at pp. 88-95.

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of guerrilla warfare. The distinctions made by Thornton in this context are not meant as an appreciation of the various modes of conducting internal war, let alone as a disqualification of terror in particular as something improper or illegal; his purpose is simply “to achieve theoretical understanding of terror” in the context of internal war. Another interesting aspect of Thornton’s definition lies in his reference to the “extranormal” nature of the violence threatened or used. While one might hope to find at least an element of law in this aspect of the definition, it is apparent that the “extranormality” that he refers to is sociological rather than legal: “[T]error lies beyond the norms of violent political agitation that are accepted by a given society… The level of extranormality varies, of course, from society to society and from time to time.” The level of accepted violent political agitation may be reflected accurately in the legal norms in force in a particular society, but quite obviously, that is not necessarily the case. A fortiori, it is highly unlikely that this variable normative level would coincide with internationally accepted standards of humanitarian law or human rights. In any event, Thornton’s concept of extranormality cannot provide any further guidance in this analysis, because it does not distinguish between guerrilla warfare and terrorism, both of which presumably are equally “extranormal”. An example of Thornton’s “symbolic act”, or perhaps a somewhat cruder version of it, is reflected in the notion of “intimidation”, which seems to be the crucial element in the definition of terrorism offered by Edward Kossoy: “Terrorism is intimidation by actual or threatened use of violence as a means of governing or securing political or other ends.” This definition is clearly more tautological than that of Thornton. Moreover, the addition of the phrase “other ends” to the definition renders it so open-ended as to make it of very limited utility as a legal tool even when it is taken in its proper context as a description of certain acts connected in some way with guerrilla warfare. Michel Veuthey, an author particularly well-informed about guerrilla warfare and humanitarian law, considers guerrilla warfare “essentially a non-con10

11 12 13

According to Thornton, [d]efinition of terror as a symbolic act … means that the terroristic act is intended and perceived as a symbol. The observer realizes that the act implies a meaning broader than its own component parts… [Thus], if the objective [of an act of sabotage] is primarily the removal of a specific thing (or person) with a view towards depriving the enemy of its usefulness, then the act is one of sabotage. If, on the other hand, the objective is symbolic, we are dealing with terror. Ibid. at pp. 77-78. Ibid. at p. 72. Ibid. at pp. 75-76. E. Kossoy, Living with Guerrilla, Guerrilla as a Legal Problem and a Political Fact (1976) p. 328.

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ventional form of warfare, which answers neither to the patterns of traditional warfare, whether in its formal or material acceptation, nor, consequently, to the framework established by the Conventions of The Hague, 1907 and Geneva, 1949.” How to situate terrorism in this inherently non-conventional, although not necessarily illegal, form of warfare is not entirely clear. Veuthey notes that the term “terrorism” had not yet acquired a generally accepted meaning in international law, and he hesitated to set forth a definition at all. In the end, he overcomes his hesitation and offers a tentative definition: terrorism is “the excessive use of violence by a State or by an armed political grouping, having the purpose to inspire the adversary or other people with anxiety, fear or even a state of submissiveness.” Unlike his predecessors, Veuthey does not focus on the goal that the perpetrator of the act seeks ultimately to achieve. He appears to be content to indicate that the states of anxiety, fear, or submissiveness are the goal. To the extent that these psychological effects amount to nothing but terror by another name, the definition is merely tautological. The terms used by Veuthey might nonetheless be regarded as a somewhat more precise description of the various stages covered by the general notion of terror. Excessive violence appears to be the most crucial element of Veuthey’s definition. Unfortunately, his definition does not answer the question of what constitutes “excessive” violence. Is the violence “excessive” if it is in excess of community expectations, in excess of what is permissible under the laws of war, in excess of what is needed to achieve the immediate effect of the act performed – for example, the death of a particular police officer – or in excess of some other standard? Without any further clarification on this point, the statement that the use of violence must be “excessive” to be considered terror begs the question. All in all, therefore, the definition that Veuthey has offered does not provide much help. Indeed, the only definition that holds out promise as an analytical tool appears to be the one formulated by Thornton, and even there it remains to be seen whether his definition can play a significant part in the context of international humanitarian law applicable in internal armed conflicts. Some years before the publication of Michel Veuthey’s book with its definition of terrorism, Veuthey had written a document entitled Rules Applicable in Guerrilla Warfare for the International Committee of the Red Cross (ICRC). The ICRC published the work as part of the documentation submitted to government experts in 1971 for the first round of discussions on the “reaffirmation and development of international humanitarian law applicable in armed con-

14 15

M. Veuthey, Guérilla et Droit Humanitaire (1976) p. 18 (translation by the author of this article). Ibid. at p. 140.

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flicts.” This publication did not define the elusive concept of terrorism. When that question was raised, the fact was established that the term “ha[d] no legal acceptation”. Taking into account the advice of experts consulted earlier by the ICRC, the document concluded that it would be preferable to by-pass the concept of terrorism. Each of the various acts that were often qualified as “terrorist” could more profitably be examined under the heading of other specific issues that would have to be considered in any case, such as combatant status, sabotage, and protection of the civilian population. By publishing the document, the ICRC intended to demonstrate that the rules of armed conflict had not yet been adapted to the particular needs of guerrilla warfare. Indeed, neither the Hague Convention and Regulations of 1907 nor the Geneva Conventions of 1949 even mention the word “guerrilla.” Neither is the word “terrorism” mentioned in common Article 3, the only provision expressly applicable in an internal armed conflict. Common Article 3 does prohibit certain acts, such as murder, the taking of hostages, and summary executions, which have often been labelled terrorist acts. Nevertheless, the Article does not qualify any particular acts as “terrorist”; the acts in question are qualified as particularly inhumane and, hence, specifically prohibited regardless of whether they could be regarded as “acts of terrorism.” In contrast to common Article 3, Protocol II, although silent on the subject of guerrilla warfare, refers to “terror” in two places. The first reference is in Article 4 (Fundamental guarantees), providing an improved and somewhat expanded version of common Article 3. Article 4(1) reaffirms the basic principle of respect and humane treatment due to “[a]ll persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted.” The scope of Article 4 is, in effect, somewhat more limited than the quoted phrase suggests. In particular, it is not designed to protect the civilian population against dangers arising from military operations, a matter which is dealt with in Articles 13-18 of the Protocol.

16

17 18

19

Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Rules Applicable in Guerrilla Warfare (1971). Ibid. at p. 35. Ibid. at pp. 35-37. The only topic singled out as deserving special study was that of political assassinations; ibid. at p. 37. Because the Conference of Government Experts rejected the entire idea of dealing with guerrilla warfare as a separate subject, this particular suggestion was not acted upon either. See ICRC, Draft Additional Protocols to the Geneva Conventions of August 12, 1949, Commentary p. 137 (1973); M. Bothe, K. Partsch & W. Solf, New Rules for Victims of Armed Conflicts (1982) p. 642.

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The list of specifically prohibited acts was expanded in Article 4(2) of Protocol II by the addition of several items. The additions include collective punishments and acts of terrorism. The drafting history of Article 4 indicates that the prohibitions were copied from Article 33 of the Fourth Geneva Convention of 1949, which reads in relevant part: “No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.” This language was adopted in 1949 with hardly any recorded debate. The ICRC Commentary, however, makes the following observations about its meaning and historical background: During past conflicts, the infliction of collective penalties has been intended to forestall breaches of the law rather than to repress them; in resorting to intimidatory measures to terrorise the population, the belligerents hoped to prevent hostile acts. Far from achieving the desired effect, however, such practices, by reason of their excessive severity and cruelty, kept alive and strengthened the spirit of resistance. They strike at guilty and innocent alike. They are opposed to all principles based on humanity and justice and it is for that reason that the prohibition of collective penalties is followed formally by the prohibition of all measures of intimidation or terrorism with respect to protected persons, wherever they may be. The closing phrase of this commentary reminds the reader that Article 33 of the Fourth Convention is found in Section 1 (Provisions Common to the Territories of the Parties to the Conflict and to Occupied Territories) of Part 20

21 22 23 24

The text of article 4(2) reads as follows: Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph 1 are and shall remain prohibited at any time and in any place whatsoever: (a) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; (b) collective punishments; (c) taking of hostages; (d) acts of terrorism; (e) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; (f ) slavery and the slave trade in all their forms; (g) pillage; (h) threats to commit any of the foregoing acts. See ibid. Art. 4(2)(b), (d). See M. Bothe, K. Partsch & W. Solf, supra note 20, at p. 641. See Diplomatic Conference of 1949, 1 Final Record p. 118; 2A Final Record pp. 648-51; 2B Final Record p. 406. 4 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Commentary p. 243 ( J. Pictet ed. 1956).

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III (Status and Treatment of Protected Persons). It derives its main importance from the effect it has on occupation law, in which it resolutely removes all doubt as to the illegality of practices such as those applied widely in occupied territories during World War II. Neither Article 33 of the Fourth Convention nor Article 4 of Protocol II defines “terrorism.” The only clarification derived from the preparatory work of Protocol II is that the act in question must be an act of violence. The original draft text had stated this expressly, and although the phrase was deleted in the course of the debate, the change was made merely to simplify the language, not to modify its meaning. Mr. Bettauer, speaking for the United States in an explanation of his vote after the adoption of the paragraph as amended, pointed out that “terrorism was an excessively vague word of which no satisfactory definition existed.” In order to avoid misunderstanding, he put on record his delegation’s understanding that the reference to “acts of terrorism” covered only such acts “involving physical violence.” The preparatory work clarifies the close relationship between the prohibition of “acts of terrorism,” on the one hand, and the prohibition in Article 4(2)(a) against “violence to the life, health and physical and mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment,” on the other. Indeed, it may be safe to state that the act of terrorism covered by Article 4(2)(d) does not really constitute a separate category entirely independent of Article 4(2)(a). Rather, it is a species of the genus “violence to the life” of the persons protected by virtue of Article 4(1). Its distinctive element is a vague concept of “terrorism” that was left undefined. This lack of clarity is not a matter of great concern, however, because the distinction between acts of terrorism and acts involving physical violence pure and simple, although perhaps suggesting a difference in gravity, does not entail any legal consequences. Indeed, an attentive reading of Article 4(2) shows that the various acts prohibited specifically were listed in a rather random order and without any apparent consideration of their relative seriousness. Here, as elsewhere in 25

26

27 28

In its effect on occupation law, Art. 33 evidently addresses the occupying power rather than the resistance fighter. It has been criticized for this apparent bias, not so much with respect to the part of the Article quoted above, but rather with respect to the prohibitions on taking hostages and reprisals laid down in subsequent paragraphs. See G. Best, Humanity in Warfare (1980) pp. 295-96; P. Boissier, L’Epée et la Balance (1953) pp. 121-29; B.V.A. Röling, “The Law of War and the National Jurisdiction Since 1945”, 2 RdC (1960) pp. 329, 417-28. For a critical analysis of Boissier’s writings, see F. Kalshoven, Belligerent Reprisals (1971) pp. 333-39. 8 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Official Records paras. 4-7, at 412, CDDH/I/SR.39 (1978) [hereinafter cited as Official Records]. Ibid. para. 30, at p. 426, CCDH/I/SR.40. Ibid.

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the Protocol, there is no indication that the drafters of Article 4(2) had any special legal consequences in mind when they added acts of terrorism to the list of specifically prohibited acts. Nonetheless, if one so wishes, one may regard an act of terrorism as an aggravated form of the violence mentioned in Article 4(2)(a). Another noteworthy addition to the list in Article 4(2) is the prohibition of “threats to commit any of the foregoing acts.” The effect of this addition is to broaden significantly the scope of the prohibitions enumerated in Article 4(2)(a) through (g). How far this extension is designed to go, however, is unclear because subparagraph (h) was accepted at the Conference without a word of commentary. Any limits the delegates had in mind with respect to the notion of “threat” are therefore a matter for speculation. Had they spoken on the subject, would they have regarded the merest threat, say, of corporal punishment or of taking someone’s watch as an act “prohibited at any time and in any place whatsoever”? If so, the wisdom of such a sweeping extension is questionable. Nevertheless, the effect of the extension with respect to the prohibition on acts of terrorism is to bring it into line with most of the prohibitions examined earlier, which address the threat of violence as well as its actual use. Article 13(1), on the protection of the civilian population, states the broad principle that “[t]he civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.” Article 13(2) translates this principle into the following, somewhat more specific, rules: “The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.” The language of the second sentence is far more specific than the terse reference to “acts of terrorism” in Article 4(2). In effect, the sentence defines terrorism in the context of the protection of the civilian population. As such, it resembles most closely the tentative definition formulated by Veuthey. Like that definition, it does not specify any ulterior motive beyond the spreading of terror, or, in Veuthey’s words, “anxiety, fear or even a state of submissiveness.” Like Veuthey’s definition, it requires a “purpose” rather than an intention, as required by Kossoy’s definition as well as by the original draft text submitted by the ICRC to the Diplomatic Conference in 1974. In the course of the proceedings, “purpose” was substituted for “intention”, presumably with a view to the slightly more objective nature of the first term. 29 30 31 32 33 34 35

Corporal punishment is prohibited by article 4(2)(a). Pillage is prohibited by article 4(2)(g). See supra notes 14-15 and accompanying text. M. Veuthey, supra note 14, at p. 140. See supra note 13 and accompanying text. 1 Official Records, at p. 16 (Part III). The Official Records do not provide an explanation for the change.

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The requirement of a purpose disposes of the argument that any act of violence actually resulting in the spreading of terror among the civilian population constitutes an illegal act. The primary purpose is decisive: an act performed for a strictly military purpose which incidentally or secondarily terrorizes the population does not fall under the prohibition. This theoretical consideration inevitably leads to a further question: how does one prove that a given act of violence had the required “primary purpose”? This question is compounded by another equally vexing question: is it possible to imagine an act of violence against a military objective, the primary purpose of which is to terrorize the civilian population? Information on how the authors of the provision saw this problem is not found in the preparatory work of Article 13, but in that of the comparable Article 51 of Protocol I, the second paragraph of which is identical to Article 13(2). The “acts of violence” mentioned in the second sentence are synonymous with the “attacks” mentioned in the first sentence. The definition of “attacks” in Article 49(1) of Protocol I is applicable to the same notion in Protocol II as well. Although the authors of Protocol II in its final version did their utmost to avoid the notion of “military objective”, it may be assumed that in an internal armed conflict, as well as in an international one, attacks can be directed against either military objectives, against the civilian population, or indiscriminately against the civilian population and military objectives alike. The first sentence of Article 51(2) of Protocol I and Article 13(2) of Protocol II expressly prohibits attacks of the second type. It is a matter of interpretation whether it also covers the third variety, i.e., the indiscriminate attack. Although an interpretation to that effect is not really of decisive importance with respect to international armed conflicts, because Article 51(4) and (5) makes special provision for this type of attack, such 36 37 38 39

See Protocol Additional to the Geneva Conventions of 1949 (Protocol I), opened for signature Dec. 12, 1977, reprinted in 16 ILM p. 1391 (1977). Art. 49(1) of Protocol I defines attacks as “acts of violence against the adversary, whether in offence or defence.” The one remaining reference is found in Art. 15, Protection of works and installations containing dangerous forces. Art. 51(4) and (5) of Protocol I reads as follows: 4. Indiscriminate attacks are prohibited. Indiscriminate attacks are: (a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction. 5. Among others, the following types of attacks are to be considered as indiscriminate:

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a separate prohibition is lacking in Article 13 of Protocol II. The expansive interpretation of the first sentence appears therefore to be appropriate. Assuming that the expansive interpretation of this sentence is correct, the question posed above can be reformulated as follows: was the second sentence intended by its authors to cover attacks on purely military objectives, in addition to attacks on the civilian population and indiscriminate attacks, always provided that the attacks have the required terrorist purpose? The drafting history of Article 51 provides little information on this question. In fact, it was not discussed in these terms at all, but was merely touched on incidentally in the debate on a related question: whether “methods” other than attacks, notably propaganda activities, should be covered by the phrase. In this context, the report of Committee III for the first session of the Diplomatic Conference noted that some delegations had “called for an interpretation” of the phrase “going beyond the attacks referred to in the first sentence of the paragraph.” Also, as noted earlier, the point was made in the debate that attacks in war, no matter what their targets, cannot fail to spread terror among the civilian population. The scope of the rule, therefore, should be restricted unambiguously to attacks having that specific purpose. These, however, are only flimsy indications, certainly insufficient to carry any firm conclusion. In the absence of a clear answer from the preparatory work, a solution must be sought from a different source. To begin with, nothing in the actual wording of the second sentence opposes an interpretation that includes attacks against military objectives. Further, a restrictive interpretation of the sentence would, to the extent that it refers to acts of violence, reduce it to a mere repetition of the first sentence. While this suggests the correctness of the expansive interpretation, a counterargument lies in a systematic consideration. In the section of Protocol I dealing with the protection of the civilian population against the effects of hostilities, Article 51 is one of a series of Articles that focus on attacks against the civilian population and civilian objects, while the question of attacks on military objectives and the risks they entail for the civilian population is dealt with in a separate chapter of that section. Although this argument is not particularly strong even in the context of Protocol I, considering that another Article of the series, Article 56, explicitly prohibits attacks on certain objects “even where these objects

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(a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and (b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. 15 Official Records, para. 46, at 241, CDDH/50/Rev. 1 (1978). 14 Official Records, para. 54, at 65 CDDH/III/SR.8 (Comments of Mr. Girard).

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are military objectives,” the argument is entirely without force in the context of Protocol II, because Protocol II does not contain any provisions on precautionary measures comparable to those embodied in Articles 57 and 58 of Protocol I. When one concludes, based on the above considerations, that military objectives cannot be excluded from the objects of the “acts of violence” of the second sentence, the remaining question is whether attacks on military objectives can be deemed unlawful when they have the required “primary purpose”. It seems clear that without an indication to the contrary, those attacks will normally be regarded as having served first and foremost, if not exclusively, the definite military purpose of gaining a distinct military advantage. In this respect, they are the exact opposite of attacks on the civilian population. While the latter may in fact have been conceived by their perpetrators as serving a military purpose, they will normally be regarded as primarily designed to spread terror among the civilian population. Two examples might be the disruption of an industrial production process by attacks against a civilian district housing the labour force of the industry in question, and a sniper’s bullet fired at a high-ranking civil servant of the government’s counter-insurgency planning apparatus. Again, the indiscriminate attack represents a grey zone between the two extremes, because its inherent ambiguity makes it difficult to indicate a primary purpose. A fairly wide margin of uncertainty exists under those circumstances. Fortunately, in many contemporary internal armed conflicts the perpetrators of particular acts of violence aid our analysis by loudly, and often proudly, claiming the acts as their own. At the same time they explain, frequently with considerable eloquence, why and how they intend to terrorize the civilian population by their acts. In such cases, these are unmistakably “symbolic acts”, as Thornton styled them. Their purpose is no longer a matter of doubt. What, then, will be the legal consequences of such a public confession? When an attack is directed against the civilian population, the only consequence is that it can be considered to have encroached on two prohibitions instead of one: it falls under both the first and second sentences of Article 13(2). The result is the same for an indiscriminate attack, if it is accepted that attacks of this type are included in the prohibition of the first sentence. Whether attacks on military objectives can be held unlawful merely because they are claimed to have had as a primary purpose spreading terror among the civilian population is another question. When the question is posed in these terms, the wide gap between the legal and the sociological approaches is apparent. To bring about an improved understanding of terrorism, Thornton applies the notion of the “symbolic act” as a tool of intellectual analysis. He thus is able to distinguish acts of sabotage, as non-symbolic acts, from the symbolic acts of terrorism. To the lawyer who is confronted with the rule laid down in the second sentence of Article 13(2), the relevant question is not what constitutes terrorism in an abstract or theoretical sense but what acts of violence should be regarded as unlawful under the terms of that rule. From this point of view, an act of guer-

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rilla warfare directed with precision and care against a person or an object that is unmistakably a military objective, and not otherwise prohibited by any applicable rule of humanitarian law, cannot be regarded as an unlawful act exclusively by virtue of a stated primary purpose of spreading terror among the civilian population. This would attach too much importance to the words or propaganda accompanying a perfectly permissible act of guerrilla warfare. Once again, without an express statement to that effect on the part of its perpetrators, the chance that an act would be recognized as designed to spread terror seems remote. On the other hand, it is not clear why the propagandistic exploitation of an otherwise irreproachable act of warfare as an element of psychological warfare would be so reprehensible as to make an otherwise lawful act unlawful. The conclusion must be that the second sentence of Article 13(2), of Protocol II does not cover attacks on military objectives with a professed terrorist purpose. It thus does not go beyond the prohibition laid down in the first sentence, and it does not provide an independent prohibition that rests on a distinction between lawful acts of guerrilla warfare and unlawful acts of terrorism. Quite apart from this negative conclusion on the main question, however, the second sentence goes further than the first one in that it prohibits both threats and acts of violence with a terrorist purpose. The “threat of violence”, indeed, may well be the sole remainder of the suggestion to bring propaganda under the scope of the prohibition. Attacks against the civilian population and indiscriminate attacks that have as their purpose to spread terror among the civilian population will fall under both the first and second sentences of Article 13(2). As in the case of Article 4, it is permissible to see in the prohibition on the spreading of terror a sort of aggravating circumstance. Where, then, lies the distinction between acts of guerrilla warfare and acts of terrorism in the context of international humanitarian law applicable in internal armed conflicts? No distinction, nor indeed any reference to terror, is found in Article 3 common to the Geneva Conventions of 1949. On the other hand, Protocol II does refer to terror in two places. The first reference, in Article 4, does not provide us with an answer to the question. The second reference, in Article 13, defines the notion of terrorism in some detail, and it prohibits threats of terrorist violence in addition to acts with a terrorist purpose. With regard to terrorist acts, neither Article attaches legal consequences to the prohibition of these acts and threats that do not already issue from other rules of humanitarian law. From a legal point of view, therefore, the term “distinction” used to differentiate acts of guerrilla warfare from acts of terrorism is probably too strong. Rather, the separate references to “acts of terrorism” in Article 4 and to “acts of violence the primary purpose of which is to spread terror among the civilian population” in Article 13 serve to accentuate the need to protect those not participating actively in hostilities. Protection is needed especially against acts of violence that are intended to intensify those feelings of fear, anxiety, and despair that the civilian population must endure throughout any prolonged internal armed conflict.

Chapter 22 Guerrilla and Humanitarian Law: An Introduction*

Guerrilla warfare belongs to all times, although it often enters history under a different name: resistance, insurrection, or war of national liberation, are terms which immediately come to mind. Even if we limit ourselves to the last fifty years, the instances to be mentioned include the Spanish Civil War, the resistance against the German occupying forces put up in a number of European countries during the Second World War, the long series of liberation wars in the decolonization process, the post-colonial struggles in several newly independent states in Africa and Asia, and the revolutionary processes in Central and South America. It will be noted that these are very dissimilar instances. Indeed, it will not be difficult to point up a number of major differences, for instance, between the large-scale and long drawn-out war in Viet-Nam and the comparatively insignificant actions of the contras opposing the Sandinista regime in Nicaragua. But these dissimilarities are no other than those between a world war and the local war between Iran and Iraq or the even shorter and more localized war between England and Argentina over the Falkland Islands: they are differences of scope, duration, and intensity. There is no substantial difference between these various “traditional” wars as far as the manner of waging them is concerned, and neither are there differences of a substantial nature between all those many guerrilla wars mentioned above: the different terms by which they are denoted do not stand for a difference in the manner in which they were conducted. Our first concern is with some essential aspects of the manner of waging war which guerrilla wars have in common. Guerrilla means “small war”: but small in what? Not necessarily in duration or scope of the war taken as a whole, nor even in the number of victims it causes. The element of smallness will be found in the scope and duration of the average guerrilla operation as well as in the number of guerrilla fighters involved in each such operation. Guerrilla actions will usually be the actions of relatively small, thinly spread units; the actions will often merely aim at a temporary advantage, such as the brief occupation of a small *

Introductory remarks made at the International Symposium of the Red Cross on Guerrilla and International Humanitarian Law, Antwerp, 2-3 Feb. 1984, and published in the Proceedings of the Symposium, pp. 23-34. The text was, and has been left, without footnotes. However, in a few places references to specific provisions have been added to aid the reader.

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town, which is given up again without much resistance as soon as hostile troops come too close; or the raid on an arms depot, with the raiders running for safety as soon as they have achieved their goal and captured the maximum amount of weapons they can carry. This mode of conducting war is often born out of relative weakness. It may be a weakness in numerical strength, in available means, or in logistical support. At all events, the situation will be one in which the classical conduct of war, with its sustained large scale operations, is out of the question; and this not only for the guerrilla fighters on account of their relative impotence but for the regular armed forces fighting them as well, because actions of the classical type will normally have little or no impact on a guerrilla opponent. The element of weakness must surely be seen in its relativity. A guerrilla movement may be weak in all respects mentioned above and may therefore have to wage a guerrilla, but at the same time its members may be excellently trained and battle-tried fighters whereas their opponents may be inexperienced and insufficiently trained recruits of the regular armed forces. So, “weakness” does not mean to say that the opponent has every advantage on its side. Above all, weakness means that if nothing else is added, the war cannot be won: not by the party compelled to use the guerrilla methods in the first place, and often not by the party fighting them either. For victory to be achieved the required additional factor may lie in the acquisition of superior means, making decisive military operations feasible; or it may be a political factor, e.g., when one of the parties loses its will to continue the struggle. Obviously, a combination of factors is also possible. Examples readily come to mind: the Netherlands giving up the war in Indonesia, De Gaulle’s decision to terminate the war in Algeria, and the negotiations in Paris leading to the departure of the Americans from Viet-Nam. All this has not yet produced any definition of guerrilla, nor shall I try to formulate one, as it is generally accepted that there is no generally accepted definition of guerrilla. Still I hope to have provided sufficient indication of the type of warfare will be the subject of our deliberations at this symposium. Our interest will go in another direction than is commonly the case in the media. The interest of the press and of public opinion with respect to conflict situations mainly focuses on two aspects: the factual course of events, and their political significance. The latter aspect is, almost as a matter of course, narrowly connected with the appreciation one feels for one or the other party. Take the Middle East: the reference may be to the Jews who escaped from the Holocaust or to the Palestinians who were driven from hearth and home. Or take El Salvador and Guatemala: sympathy may lie with the poor, oppressed rural populations, or with the established authorities who provide the last bulwark against rising communism. To put the issues in such terms is tantamount to expressing one’s sympathy for this or the other party. This can be an entirely legitimate posture, motivated by deep moral or religious convictions; translated into juridical terms,

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it is a matter of the justification of recourse to force on either side. Unfortunately, international law does not offer a very reliable hold in this respect: the only firm rules here are the prohibition on use of armed force against another State and the permission to use force in self-defence. The lawfulness or otherwise of attack and defence in non-international armed conflicts is hardly an issue at all of international law. Such an internal war becomes a matter of interest (in the meaning of “food for international lawyers”) only when other States interfere in the conflict: the question then arises whether this interference amounts to intervention, thus bringing the rule into play which declares intervention unlawful. The press and public opinion, as well as many lawyers, often are also interested in one further aspect of the matter, i.e., the question whether and to what extent the warring parties are violating human rights. This too is an entirely legitimate concern, which as a matter of fact lies very close to our present concern: essential rights such as the right to life and the right to personal integrity and a decent existence belong to the sphere of humanitarian law as much as to that of human rights. Nevertheless, I note with dismay that the media may be eager to publish news items relating to human rights but rarely give any attention to news items concerning the closely related field of humanitarian law. Are the parties involved in a guerrilla themselves interested in humanitarian law? One party surely is: I refer to the “party” defined by Marcel Junod as “Le troisième combattant”. For many years Junod acted as a delegate of the International Committee of the Red Cross, for instance in the Spanish Civil War. With his “third combatant” he indicated himself and his colleagues of the Committee, warriors without weapons: warriors for humanity in warfare. The book which he published under the quoted title, as well as many other publications of the Committee demonstrate the considerable effort it usually has to spend merely to make the participants in the conflict as much as barely aware of the rules: evidently, the Geneva Conventions of 1949 and the Additional Protocols of 1977 do not belong to the preferred light reading of future guerrilla fighters (or of army recruits, for that matter). It was not for nothing that the Committee decided some time ago to direct its efforts for the dissemination of humanitarian law in particular to areas like El Salvador, where the outbreak of armed conflict made knowledge of this law more than ever an urgent necessity. Such a dissemination effort already presupposes some willingness in principle on the part of the “other parties” involved in the conflict – i.e., those parties who actually wield arms – to take cognizance of, and respect, humanitarian standards. Will this willingness-in-principle be present? Apparently, this is not always the case. Thus, in a liberation war the argument may perhaps be heard that the liberation movement is fighting for the self-determination of a people which is being kept under unlawful oppression; and, so the argument goes, our movement, confronted as it is with such an unlawful oppression, cannot be expected to observe humanitarian rules.

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This argument was already heard in a more general context shortly after the Second World War. The International Military Tribunal at Nuremberg had condemned wars of aggression as unlawful and had even accepted criminal liability of the leaders who bore the main responsibility for these wars. In subsequent discussions in the academic world several participants concluded that all acts performed in execution of a war of aggression must be regarded as unlawful and that therefore the defending party, acting as it is in legitimate self-defence, cannot be considered to be limited by rules of law in its defensive actions. The argument in its absoluteness amounted to a categorical denial of the continued application of the law of war, including its humanitarian part. This was carrying the argument one step too far: the outcome of the debate among the scholars was that even those who at the outset had advocated the extreme thesis reconsidered their position to the point that humanitarian law would always apply, irrespective of which party should be regarded as the aggressor or the defending side. To take a practical example, in the war between Iran and Iraq one or the other party may be the aggressor, but both parties are bound to observe the prescripts of humanitarian law. The outcome of this early general debate could not prevent some participants to the discussions carried on in the nineteen seventies on the “reaffirmation and development of international humanitarian law applicable in armed conflicts”, from repeating once again the entire argument of “lawful defence” against “unlawful aggression”. Fortunately the renewed attempt remained without any appreciable effect. One must be aware, though, that the argument is likely to crop up time and again, and each time this happens the counter-argument must be that no matter what the cause of the conflict – be it a war of national liberation or a war for another cause considered “just” by the party concerned – humanitarian law does not exist to serve this kind of justice but to protect those people who, whichever side they may be on, are equal in the suffering they have to undergo as a consequence of the war. A variation on the theme of unlawful aggression may be the thesis that humanitarian law itself, in contradistinction to its claim, actually enhances inequality between the parties in a guerrilla. It will be argued that this law in fact is written with a view to the usual, classical mode of conducting war between regular armed forces; that it permits those armed forces to use methods of warfare, such as aerial bombardment, which are beyond the capacities of a guerrilla movement, and that on the other hand it prohibits certain methods of warfare, such as the exertion of pressure on the adverse party by means of attacks on politicians and other leaders, which for the guerrilla movement constitute an indispensable means to achieve its goal. The conclusion will be that the guerrilla movement therefore cannot reasonably be bound by this discriminatory law. There is a flaw at the very outset of this argument: as will be explained further on in some detail, the architects of the Additional Protocols of 1977 were thoroughly aware of the characteristics of guerrilla warfare. At the same time,

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they did not perceive any grounds for making this type of warfare the subject of a whole set of special rules. As well, the argument that one party is permitted to use methods which are not within the capacities of the other party is based on the equally incorrect supposition that an armed conflict would be a duel, with all guarantees attached for the equality of the weapons used on either side. And the argument, finally, that humanitarian law prohibits certain specific methods of warfare which are indispensable in a guerrilla, cannot by itself carry the conclusion that in a guerrilla war this law may beset aside in its entirety. All in all, therefore, the argument is entirely without value. A final, very serious risk threatening humanitarian law in its very essence lies not so much in any argument to the effect that in a given situation, respect of the law cannot reasonably be expected, but in the deliberate decision simply to disregard it. The decision, in other words, will be that prisoners shall not be taken; that the wounded and sick shall not be respected, and women and children shall no more be spared than hospitals or consignments of medical supplies; and so on and so forth. To put it in yet another way, the decision will be for total war and total terror. That such a decision has in fact been taken may emerge from the manner in which the war is being waged, rather than from any express proclamation accompanied with the sound of trumpets. Quite on the contrary, the leaders who are responsible for the decision will probably attempt to cover it up by public statements proclaiming the exact reverse: they will declare that their side fully recognizes its obligations under humanitarian law and is determined to observe the rules to the best of its ability. Yet, decisions of this type do occur, and this not only in contemporary guerrilla. As the decision is not itself buttressed by legal arguments, a counter-memorial based on legal grounds will be of no avail. So what is left for the defender of humanitarian law? His only chance lies in convincing the leaders who took the decision, that in doing so they acted against their own best interests. It will have to be explained to these leaders that a policy of total war may lead the adversary to repay them in kind; that those responsible for the policy risk being tried for war crimes; and, most important of all, that their chosen policy may lead to negative publicity and, hence, may do damage to their cause. The leaders involved will probably attach much value to avoiding the latter damage. Yet, to convince them of the threatening danger, the defenders of humanitarian law must possess a great deal of fortitude and tenacity. We must be grateful that the delegates of the International Committee of the Red Cross are ready time and again, and even in the most extreme circumstances, to make their never ceasing efforts for the defence of humanitarian law. We now turn to the case, hopefully a more normal one, when from the outset of the conflict, or later on as a result of the efforts of the Committee, there is a measure of willingness to observe the rules of humanitarian law. What, in such a situation, is the relation between guerrilla and humanitarian law: to what extent

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are they compatible? It was noted earlier that guerrilla is not a clear-cut notion. It is moreover to be noted that “guerrilla” does not figure as such in the law of war. Yet, the architects of this law have long been struggling with certain problems which today are brought under the heading of “guerrilla”. The most notorious was resistance in occupied territory, and specifically the fate of inhabitants of the territory who committed acts of resistance without belonging to the armed forces. Were these irregular fighters simply franc-tireurs who could be summarily executed, or were they legitimate combatants entitled to treatment as prisoners of war? The Conference of Brussels which in 1874 attempted to codify the rules of war on land did not succeed in solving this problem, and the Hague Peace Conferences of 1899 and 1907 were no luckier. It would take until the Geneva Diplomatic Conference of 1974-1977 for a solution to be formulated which found the support of a vast majority. Even then, this solution applies only in international armed conflicts. As far as the law relating to internal armed conflicts is concerned, the concepts of “combatant” and “prisoner of war” simply do not figure in the written texts, let alone that rules would have been adopted which accord such status not merely to the members of the regular armed forces but to irregular fighters as well. International and non-international armed conflicts: these are the two situations which humanitarian law distinguishes. As far as international armed conflicts are concerned, this body of law has undergone a remarkable development, even to the extent of being perhaps somewhat over-developed in certain areas. While this already may cause some problems in cases of traditional warfare, this is all the more likely in the peculiar confusion which usually characterizes guerrilla warfare. Humanitarian law for internal armed conflicts, in contrast, is not by far as thoroughly elaborated: it traces some main topics in broad outline, while keeping entirely silent on certain other matters. This too causes problems in a guerrilla: while the mode of conducting war in an internal guerrilla may not markedly differ from the practices applied by guerrilla fighters in an international armed conflict, those who are set on containing the internal guerrilla within limits acceptable from a humanitarian point of view, find insufficient support in the rules written especially for internal armed conflicts. An example may illustrate this difficulty. Humanitarian law applicable in internal armed conflicts provides that anyone who does not, or does no longer, participate directly in the hostilities is entitled to respect for his person and must be treated humanely, and it is expressly prohibited to order that there will be no survivors. But there is not the slightest indication by what means a unit engaged in guerrilla operations should keep captured adversaries alive. In actual fact, this may present very serious problems, and it should be stressed that for the event of an international armed conflict this situation has been dealt with in great detail. Obviously, the set of problems noted here is not new. It would be very bold for me to claim originality on this score, when the next speaker will be the very

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lawyer who as a member of the legal staff of the ICRC invited attention for the problems of guerrilla warfare quite some years ago. I refer here to a report drafted by Michel Veuthey and published by the Committee in January 1971 as Vol. VI of the voluminous documentation it submitted to the government experts who in May and June of that year met in Geneva in a first round of discussions on the possibilities of a “reaffirmation and development of international humanitarian law applicable in armed conflicts” (as the subject came to be known). The report, entitled “Rules applicable in guerrilla warfare”, concluded with the suggestion that standard minimum rules should be drafted which could be applied in all armed conflicts not corresponding in every respect with the situations envisaged by the existing law. The idea was not that the standard minimum rules would be transformed into a treaty, comparable to the Geneva Conventions of 1949. On the contrary, according to the intentions of the drafters, these rules would simply be available as a model text, and any party to such an irregular conflict would have the opportunity, should it so wish, to notify its acceptance of the rules, presumably on the condition of a reciprocal undertaking on the part of its adversary. The Report contemplated the following subjects for inclusion in the standard minimum rules: – a definition of combatants and their treatment in case of capture or surrender; – a definition of the civilian population and its protection in the event of a military occupation as well as against the dangers arising from the hostilities; – principles and rules of conduct to be applied between the opposing combatants; and finally, – procedures to promote the observance of the rules. The Conference of Government Experts discussed the matter, though not in the detail which really would have been necessary. The debate yielded a number of widely divergent opinions. There was some enthusiasm for the notion of a text containing standard minimum rules, prepared in advance, which the ICRC would keep at the disposal of interested parties; should the case arise, the text could be presented to the parties involved in a guerrilla, for their consideration and, hopefully, for adoption. But other experts suggested that the problems of guerrilla warfare ought not to be considered in isolation: the revision of various important chapters of the law of war, which had been set in motion, provided a far better framework for the further examination and discussion also of the relations between guerrilla and the law of war. The next year, in May 1972, the Conference of Government Experts met in second session. This time, the discussions were held on the basis of draft articles submitted by the Committee. These documents no longer included a separate volume on guerrilla warfare. Yet the matter came up occasionally, in the context of the discussions on specific issues, such as the draft rules relating to the definition of combatants and the conduct of hostilities against opposing forces. On this

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subject, the Committee had submitted a draft article which under the express heading “guerrilla fighters” laid down the conditions which guerrilla fighters would have to meet in order to qualify for treatment as prisoners of war. In fact, this matter of the conditions under which an irregular fighter will be recognized as a combatant and, hence, will be accorded prisoner-of-war status is the only issue relating to guerrilla warfare that actually has been dealt with in Article 44(3) of Protocol I of 1977, and even then this was not done under any express heading such as “guerrilla” or “irregular fighters”: the issue is hidden under the neutral headings “armed forces” and “combatants and prisoners of war”. It was noted earlier that in contrast, Protocol II, applicable in internal armed conflicts, is conspicuously silent on this entire issue. In this connection, I should mention the victory the Third World countries, supported by the Soviet Union and its allies, scored in the Diplomatic Conference of 1974-1977 when they saw a provision adopted as Article 1(4) of Protocol I, to the effect that wars of national liberation fall under the category of international armed conflicts and, hence, come within the full scope of the Geneva Conventions of 1949 and Protocol I of 1977. As noted before, liberation wars often present guerrilla characteristics. It is moreover obvious that the very characteristics of a guerrilla make the faithful application of the complete set of rules written for international armed conflicts extremely difficult, if not impossible. It should be emphasized in this respect that these rules are not confined to providing for the rights of participants – although this was the aspect of the matter which the proponents of internationalization of liberation wars were mostly interested in. The rules also imply obligations for the combatants, on such matters as the fate of the civilian population, the protection of medical units and transports, and the responsibility, including criminal liability, of the commanders for wrongful acts of their subordinates – to mention only these few subjects. Application of all of these rules presupposes a control of part of the territory and an administrative and logistical organization which liberation movements, especially in their initial phase, simply cannot muster. As the decision, laid down in Article 1(4) of Protocol I, to include liberation wars among the international armed conflicts was taken already in 1974, the Conference might have been expected in the subsequent years to make every effort to consider the consequences of this decision and to make the necessary adjustments in the various proposed articles whenever these came up for discussion. Nothing of the kind happened. It was noted a moment ago that the position of irregular fighters was the only item of importance for guerrilla warfare which has found a place in Protocol I and indeed left a clear mark on the provisions in Article 44 on the fate of combatants falling into the power of an adverse Party. For the rest, the participants at the Conference confined themselves to occasional reaffirmations that the rules they were drafting for the conduct of an international armed conflict were in fact intended for all types of warfare, guerrilla not excluded.

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One may blame the Conference for its lack of attention to the specific problems of guerrilla warfare, or rather for the apparent unwillingness of the majority seriously to tackle these problems once its main goal, being the internationalization of wars of national liberation, had been achieved. At the same time, this neglect provides an opportunity for this symposium to revert to the question raised already in the seventies by the ICRC, and to discover what we can contribute to the discussion on the subject of standard minimum rules for guerrilla warfare. Before ceding my place to my good friend Michel Veuthey of the ICRC, I wish to make one final remark. Respect for humanitarian law in a guerrilla presupposes some basic knowledge at least of its principles, as well as a willingness to observe them. The community of States has as best it could formulated these rules and principles, mainly in the Geneva Conventions of 1949 and the Additional Protocols of 1977.The ICRC, for its part, always tries to the best of its abilities to overcome any reluctance which may arise in practice with respect to the obligations of parties to heed the rules and principles, and it disseminates required knowledge as widely as possible. Yet this body of Swiss citizens, no matter how motivated, cannot perform these tasks all by themselves. Indeed, no more than human rights law will prosper without the support of public opinion and the attention of the media, no more will the cause of humanitarian law in guerrilla warfare be able to survive without the support of the media and of public opinion. May the media gain the insight that serious violations of humanitarian law applicable in armed conflicts are just as detestable as grave violations of human rights, and indeed so detestable that everyone should raise his voice against them, even when one sympathizes in principle with the cause the movement concerned is fighting for. With this appeal to the media I conclude this introduction.

Chapter 23 Assistance to the Victims of Armed Conflicts and Other Disasters*

1

Purpose of the Conference

The subject of international humanitarian assistance to the victims of armed conflicts and other disasters holds great topical interest. Yet it is far from new: instances of such assistance being offered and accepted have occurred in every period of human history. For present purposes it seems both proper and sufficient to go back about 125 years, to the origins of what has since developed into the International Red Cross and Red Crescent Movement. The story of the early beginnings of the Movement is well-known: 24 June 1859, the Battle of Solferino, between a French and an Austrian army; that same evening, arrival on the scene of Henry Dunant, a young Geneva banker and entrepreneur; the appalling sufferings he witnessed over the next few days, of the more than 9000 wounded of both parties; the manifest incapability of the few French medical officers present, to give the wounded anything like adequate care; and finally, the strenuous efforts by Dunant and some other volunteers, to relieve as best they could the misery of these war victims. The point to be emphasized here concerns the two stages in his reactions to these dramatic events: first, his immediate activities, both on the spot (cleaning and bandaging countless wounds and, sadly, assisting the many dying in their agony) and by taking the initiative for a modest international relief action. These heartbreaking experiences were followed by a phase of reflection, culminating in the publication, in 1862, of his book Un souvenir de Solferino. In the final chapter of the book, Dunant advanced two important, narrowly connected ideas; to quote his own words:

*

1 2

Introduction to the theme of the International Conference on Humanitarian Assistance in Armed Conflict, The Hague, 22-24 June 1988; earlier published in Assistance to the Victims of Armed Conflicts and Other Disasters (1989) pp. 13-26. Pierre Boissier, From Solferino to Tsushima: History of the International Committee of the Red Cross (translation from original French version (1985) p. 21. Un souvenir de Solferino (1862) pp. 102, 113; the quotes in the text are from Boissier, op. cit. note 1, p. 40.

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And some pages further down: when princes of the military art belonging to different nationalities meet … would it not be desirable that they should take advantage of this sort of congress to formulate some international principle, sanctioned by a convention inviolate in character, which, once agreed upon and ratified, might constitute the basis for societies for the relief of the wounded in the different European countries?

With these few lines, he had thrown a clear light on the need for the organization of private efforts combined with international norm-setting, as essential conditions for an effective assistance to the victims of events as disastrous as the Battle of Solferino. It was not long before both ideas began to materialize, with the creation, first, of national Red Cross societies and the International Committee of the Red Cross and secondly, the adoption of the Geneva Convention of 22 August 1864 for the Amelioration of the Condition of the Wounded in Armies in the Field. In retrospect, the Battle of Solferino, no matter how horrendous from the point of view of human suffering, was a fairly simple affair when regarded as a disaster: it was really nothing more than a pitched battle between two opposing armies. To be sure, the two armies, taken together, had numbered more than 300.000 troops; but the violence did not extend beyond the battlefield and claimed no victims other than the dead and wounded among the combatants: it did not, in particular, expose such outsiders as the inhabitants of the nearby localities to any direct risks. Then, although the aftermath of the battle might have brought to light the desperate shortage of military surgeons and medical supplies on the French side, the idea itself, that the wounded of armies in the field should be given adequate assistance and treatment, did not at the time encounter any serious opposition. And last but not least, there was no question yet in Europe of closed State borders that could effectively have stood in the way of an international relief action. Since those early days, a never-ending stream of armed conflicts and other disasters, often of far greater scope and complexity than the Battle of Solferino, has continued to provoke the need for international humanitarian assistance; and this has in turn run into far graver difficulties than could ever have been imagined in 1859. The point to stress here is the in essence unchanged reactions to such disaster situations: again and again, it is action first, followed by reflection; and each time, the main recurrent themes in the latter phase are the twin ones of organization and international legislation.

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A number of questions are bound to arise in the course of this process of reflection. A few may be mentioned here, by way of example and without any attempt at completeness: – When should a given situation be qualified as a “disaster”: what, in other words, are the elements characterizing it as such? – What, in particular, are the circumstances qualifying a situation as an “armed conflict”? – Who should be recognized as the “victims” of an armed conflict or other disaster? – What meaning should be attached to each separate word in the phrase “international humanitarian assistance”; when, specifically, may such assistance be regarded as “humanitarian” in character? – Who are the persons or institutions who purport to offer their services under the caption of international humanitarian assistance? – What motivates them and what are their goals; what methods do they use and what are the means at their disposal? – How do their activities fit in with the (legal and factual) powers of the authorities in the country affected? – What positive or negative effects should be expected of international humanitarian assistance, both in the short and long run? Obviously, officials of aid societies, even though men or women of action in the first place, may find quite enough subject matter for reflection in their spare moments. In effect, they and other similarly interested persons have met to this end more than once, and in the process, a good many words have been spoken and written about the subject of “international humanitarian assistance”. The present conference aims to contribute its bit to this ongoing discussion, obviously without the least pretence at finding definitive answers to the questions at issue. The programme of the conference centres around two key concepts: on the one hand, the situation: the disaster; on the other, the action: international 3

The subject is an obvious item on the agenda of international Red Cross and Red Crescent meetings. Other recent conferences on the subject include: the 10th session of the Medico-Juridical Commission of Monaco, 24-26 April 1986 (33 Annales de Droit international médical, 1986); a conference under the auspices of Médecins du Monde and the Law Faculty of Paris-Sud on “Humanitarian Law and Morality”, Paris, 2628 Jan. 1987 (Mario Bettati and Bernard Kouchner (eds), Le Devoir d’ingérence, Paris, 1987); and a round table organized by the Red Cross Society of Monaco in cooperation with the San Remo International Institute of Humanitarian Law, Monaco, 22-24 April 1987. And see: Peter Macalister-Smith, International Humanitarian Assistance – Disaster Relief Actions in International Law and Organization (1985); Jean-Christophe Rufin, Le Piège - Quand l’aide humanitaire remplace la guerre (1986); Randolph C. Kent, Anatomy of Disaster Relief – The International Network in Action (1987).

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humanitarian assistance. It seems no more than appropriate, in this introductory statement, to make some remarks about each of these concepts and, perhaps, present them in terms that might serve as broad working definitions. 2 What Is to Be Understood by a “Disaster”? As a common household word, the term “disaster” cannot be said to have acquired any very precise meaning. This may be different when it is used as a legal term of art as, e.g., in the Dutch Disaster Act of 1985: in such an instrument the legislator may be expected to give the term a precise definition. No such specific legal definition has so far come to be accepted on the international plane, though; and this leaves every user free to ascribe to the term the sense that best suits his personal preferences. Thus, while for some it had best remain restricted to natural phenomena, others may define it as encompassing man-made situations as well, with armed conflict as an obvious example. Again, some may prefer to employ the term only for sudden calamities of short duration, such as an earthquake or a cyclone, while others may include such long-term phenomena as drought, or a long drawn-out armed conflict. In these circumstances, we are equally free to attach to the notion “disaster” the meaning that appears most suitable to the purposes of the present conference. Accordingly, it is suggested that for our purposes, a disaster may be defined as: any calamity that strikes a society which is not or is ill prepared or equipped to cope with its effects. The calamity may be a sudden, short-lived one: a hurricane, or the Battle of Solferino; or a long-term process: a protracted period of drought, or the endless years of armed conflict in El Salvador or Afghanistan, or between Iran and Iraq. As may be evident from the few above examples, the definition is designed to include the man-made disaster styled “armed conflict”. This leads to the next obvious question: when should a particular conflict between States or other parties be recognized as constituting an armed conflict? In contrast with the general notion “disaster”, “armed conflict” is an international legal term of art and has been so ever since its inclusion in the four Geneva Conventions of 1949. Therefore, the above question assumes particular importance when it is a matter of determining whether in a concrete instance, these Conventions or similar international instruments, such as the Additional Protocols of 1977, are in effect applicable. 4 5

Staatsblad 1985, p. 88. Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Convention (III) Relative to the Treatment of Prisoners of War; Convention (IV) Relative to the Protection of Civilian Persons in Time of War. The text of the four Conventions of 12 August 1949 has been published in many collections of documents, e.g.: Dietrich Schindler & Jiri Toman, The Laws of Armed Conflicts, 2nd ed. (1981) pp. 305-523;

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When one turns to the Conventions for guidance, it is soon apparent that the use of a term in an international treaty does not necessarily guarantee clarity of meaning. The Conventions, in point of fact, recognize two different types of armed conflict: those that are international in character, and other ones that are regarded as non-international, or internal; and the distinction carries with it very important legal differences. Yet the Conventions leave either type of armed conflict practically undefined. As regards international armed conflicts, common Article 2 merely states that the Conventions “shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” And as for internal armed conflicts, common Article 3 simply provides that the minimum rules laid down in that Article shall apply in an “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.” The situation has not changed very much with the advent of the Protocols of 1977. Article 1(4) of Protocol I, which purports to encompass so-called wars of national liberation among the international armed conflicts, once again simply refers to “armed conflicts”. In effect, the only attempt at definition is to be found in Protocol II, applicable in situations of internal armed conflict; as provided in Article 1(1), application of the Protocol requires an armed conflict that takes place: in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

And paragraph 2 adds, for good measure, that Protocol II is not meant to apply to “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.” This exception apart, the generally open-ended use of the term “armed conflict” in the treaties in force leaves much scope for interpretation. Therefore, differences of opinion are bound to persist about whether or not a specific situation represents an armed conflict in the sense of those instruments, and if so, an inter-

6

Adam Roberts & Richard Guelff, Documents on the Laws of War (1982) pp. 169-337; International Red Cross Handbook, 12th ed. (1983) pp. 23-212. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977; Schindler & Toman, pp. 551-636; Roberts & Guelff, pp. 387-463; International Red Cross Handbook, pp. 216-303.

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national or internal one. And as if this were not enough, an additional difficulty arises from the fact that in practice, armed conflicts often display elements of either category. It may suffice to mention here, by way of example, the armed conflict in Angola, with its long-time participation by Cuban and South African armed forces alongside, respectively, the governmental and rebel armies. Reverting once again to the general notion “disaster”, one particular feature of the definition suggested above should be emphasized here. Rather than concentrating on the calamitous event, the definition focuses on the society affected, specifying that this must be not or ill prepared or equipped to cope with the effects of the event. So defined, a disaster is a relative concept. In other terms, a calamity will constitute a “disaster” only if the society experiences it so. Thus, in regions that are frequently hit by earthquakes, it may prove possible to erect buildings of such strength that they withstand most quakes; and the other way round, it is also possible to build very light structures, in the knowledge that they will crumble at the least push but then can easily be replaced by equally temporary constructions. In either case, even a major earthquake need not amount to a disaster. Randolph Kent is an author who lays great stress on the relativity of the notion of “disaster”. In his recent book, Anatomy of Disaster Relief, he makes the point in the following terms (with “disaster agent” standing for about the same notion as our calamitous event): “Disasters are about vulnerability – the susceptibility of a potential victim to the life-threatening impact of a ‘disaster agent’.” And further on: The relationship between disaster agents and vulnerability leads one on to a basic definition of disaster, for a disaster occurs when a disaster agent exposes the vulnerability of a group or groups in such a way that their lives are directly threatened or sufficient harm has been done to economic and social structures, inevitably undermining their ability to survive.

Kent also emphasizes that the likelihood for a “disaster agent” to result in a disaster is significantly greater in developing countries than it is in developed ones. In effect, both the population and the authorities in developing countries will often be insufficiently equipped, both in terms of infrastructure and available resources, to ward off or overcome the effects of the calamity. As Kent has it: “in resourcepoor countries … [v]ulnerabilities are poised very near the brink of disaster. It takes relatively little to expose them.”

7 8 9

On this point, see: Martin Hess, Die Anwendbarkeit des humanitären Völkerrechts, insbesondere in gemischten Konflikten (1985). Kent, op. cit. note 3, pp. 2, 4. Ibid., p. 8.

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It is suggested that up to a point, the relativity of the notion “disaster” applies to armed conflicts as well. When a society so wishes and has the means, it may prepare against certain foreseeable effects of warlike activities: shelters may be built, the evacuation of especially endangered areas planned, military objectives kept separate from civilian objects, etc. The effectiveness of these and similar measures (which are bound to rest on certain assumptions about the entity that is regarded as the potential adversary) will obviously depend on a great many factors, and it is not here the place to enter into a discussion of these factors. It may suffice to posit that by such means – and, it should be emphasized once again, always within certain limits – living conditions may be kept reasonably bearable even when a society is made to suffer the effects of armed conflict. A most convincing example of such vastly improved protection from the effects of hostilities may be seen in the development since the days of Solferino, of military medical services of immeasurably increased efficacy, so much so that national Red Cross societies are nowadays rarely called upon to perform the task they were originally created for, i.e. assisting the medical services in treating and caring for the wounded of armies in the field. As in the case of natural calamities, developing countries are likely to have only limited means at their disposal to cope with the harmful effects of armed conflicts. A case in point is the collection of wounded from the scene of battle, where the richer countries may be able to use helicopters for this purpose (and accordingly may wish to have these recognized and protected as “medical aircraft”) whereas the poorer ones may entirely lack such capabilities. Again as in the event of a natural calamity, an armed conflict may conceivably also lead to the reverse reaction. A population that has had to live with the scourge of an ostensibly interminable armed conflict, may in the end come to assimilate the effects thereof so completely into their expectations regarding matters of life and death, that they no longer consciously experience the ongoing conflict as a disaster. This effect might, again, be feared in particular in the developing countries. Yet, the seemingly endless series of (mostly internal) armed conflicts that continue to plague these generally disadvantaged countries do not so far appear to have resulted in a fatalistic acceptance by the peoples involved, of this “scourge of war” as just one more unavoidable feature of life. In other words, present-day armed conflicts represent a “disaster” to the victim societies, much as Solferino did in 1859 to the direct victims: the wounded combatants of the French and Austrian armies involved, and in a wider sense, to the ruling elites in Europe. 10

In the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974-1977, the point of unequal medical air transport facilities was raised by Mrs. Dariimaa, representative of Mongolia, in a meeting of Committee II, 3 April 1975; CDDH/II/ SR.45, Official Records, Vol. XI, p. 501.

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International Humanitarian Assistance

Turning next to the other main concept, it cannot really surprise us that, like the term “disaster”, the phrase “international humanitarian assistance” is used to cover very diverse phenomena. One current use is for a neutral State to restrict the support it gives to one party to an armed conflict, to supplies that it indicates as “humanitarian assistance”. This it may do when it is in sympathy with that party but wishes to avoid the all too direct involvement that might result, e.g., from the supply of weapons. Especially when it is a matter of supporting the insurgent party in an internal armed conflict, to confine one’s material support to “humanitarian assistance” may be a useful device to evade protests of unlawful intervention in the belligerent State’s internal affairs while still making clear where one’s sympathies lie. A case in point is the assistance brought by the United States to the contras in and around Nicaragua. At the initial stages of the U.S. involvement this embraced all sorts of supplies, including weapons. In June 1985 Congress decided that the aid would have to be restricted to humanitarian assistance. The paragraph in question defines permissible “humanitarian assistance” as: the provision of food, clothing, medicine and other humanitarian assistance, and it does not include the provision of weapons, weapons systems, ammunition, or other equipment, vehicles, or material which can be used to inflict serious bodily harm or death.

While the quoted text may appear clear enough, it still left room for interpretation. Thus, it has been rumoured that after Congress had taken its decision, there were those in administration circles who held that means of communication could still be supplied as they fell in the category of humanitarian assistance. It may be conceded that communications equipment is not a weapon or weapons system, nor can it otherwise, in and of itself “be used to inflict serious bodily harm or death.” Yet it isn’t food, clothing, or medicine either, nor does it particularly resemble any one of those items on the list of “humanitarian” goods. In effect, it is a well-known fact that means of communication are of vital importance in all military operations, guerrilla-type operations not excluded. Returning to the specific context of the present conference, the “international humanitarian assistance” contemplated in the programme concerns victim-oriented rather than party-oriented assistance. Even so narrowed, diver11

12

As quoted in para. 97 of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 14, at p. 47. The question of humanitarian assistance to the contras came up in a more general way in the case mentioned in the previous note, ICJ Reports 1986, p. 115: paras. 242, 243.

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gent views may obtain on the precise connotations of the phrase, and this may perhaps become apparent in the course of the proceedings. For the moment, “international humanitarian assistance” may simply be defined as those, and only those, activities and goods which, out of a feeling of solidarity and joint responsibility, are designed to provide direct support to the victims of an armed conflict or other disaster. In this definition, the victims are those people who individually and directly suffer the effects of a “disaster” without having the means effectively to cope with these effects. In Solferino, they were limited to the wounded combatants. Many other categories have since been added to the list of officially recognized disaster victims: prisoners of war; the inhabitants of occupied territory; refugees, and other civilians who are persecuted, displaced or exposed to starvation; and other especially vulnerable categories of people: children, mothers of infants, pregnant women, the aged. As we know only too well, the number of these victims nowadays runs in the millions. “Humanitarian” assistance to the victims of disasters doubtless includes the provision of medical supplies, food, clothing, bedding and suchlike goods, as well as the required means of transport and the money to finance the purchase of all such supplies. Excluded are: weapons, weapon systems, ammunition and other requisites for the conduct of hostilities (such as communications equipment), as well as money for these purposes (or that may reasonably be expected to be diverted to such purposes). For assistance to be “international” requires that it comes from outside the country where it is needed. What moves outsiders to engage in such activities? Obviously, there is not just one answer to this question: the motives of individual “donors” and donor agencies may be miles apart. In the case of Henry Dunant, it was probably, quite literally, the very fact that he was “moved”, or in other words, his individual emotion. Yet personal emotion can no longer serve as sufficient motivation for the worldwide International Red Cross and Red Crescent Movement that grew out of his initiative. Indeed, the motives behind concrete activities by component parts of the Movement (be they the ICRC, national Red Cross or Red Crescent societies, or the League) may differ widely; this despite the fact that as a network, it is characterized by fairly close ties and a unity of doctrine that has found expression in the seven fundamental principles governing the activities of all of its component parts: Humanity, Impartiality, Neutrality, Independence, Voluntary service, Unity, and Universality. Obviously, the differences of motive will be even more marked when other donors of international humanitarian assistance are brought into the picture. Take foreign governments, whose decisions about the provision (or refusal) of bilateral or multilateral assistance can hardly fail to take into account plain political factors. The same applies to intergovernmental organizations, along with the 13

On this, see: Rufin, op. cit. note 3.

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arguments their specific mandates may provide. Church agencies are motivated to join the aid process by their own, religious or other interests. Then, while Dr. Bernard Kouchner, the French initiator of Doctors without Frontiers, may have been personally motivated by his emotional reactions to a specific armed conflict, the Biafra war, much as Henry Dunant had been by Solferino, the identical motivation can hardly be expected to inspire each individual member of this and other recently created aid societies. One particular aspect of this question should still be mentioned. It is the relationship, much discussed nowadays in Red Cross and other circles, between disaster relief and development aid. Admittedly, the two forms of assistance stem from different motivations and ostensibly serve different goals. Yet a development aid organization that is actively engaged in a project in a given country may find itself involved in a situation (a flood, a hurricane) requiring immediate disaster relief. Conversely, an agency that starts out by providing relief to the victims of an acute disaster may in the course of its activities become aware of the need for it to continue with what then assumes the character of structural development aid. In this manner, the close factual links between the two forms of assistance may come to light in the work of either organization. This may be particularly apparent in armed conflicts as in Africa, with the huge masses of refugees and displaced persons that ensue from those conflicts being disaster victims in the technical sense of the term, but requiring additional development programmes both for them and the host countries at the same time. As noted before, an event constitutes a disaster when it is experienced as such by the society affected. In this situation, the country may either request assistance, or it may receive an unsolicited offer of assistance from a foreign institution or agency. In either case, the authorities in the country concerned have a crucial role to play, as the request or acceptance of outside assistance may require a major policy decision involving delicate considerations of collective and personal prestige. In the event of a natural disaster, such as a drought or an earthquake, the authorities in question may be inclined to perceive in the need to request or accept outside assistance, an element of recognition of their own shortcomings. In this respect, the posture of the authorities in developing countries deserves special attention. While they seem to regard long-term structural development aid as little else but their due, yet, when faced with the urgent need for outside assistance resulting from an unforeseen natural disaster, they may react with a 14

15

Much has been written about this armed conflict and the tremendous obstacles to humanitarian assistance, erected in large measure by the belligerent parties themselves and other governments; two works are mentioned here: Thierry Hentsch, Face au blocus – La Croix-Rouge Internationale dans le Nigeria en guerre (1973); and Dan Jacobs, The Brutality of Nations (1987). On this, see: Robert F. Gorman, Coping with Africa’s Refugee Burden – A Time for Solutions (1987).

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surprising degree of sensitivity and show themselves reluctant, both before their own populations and the outside world, to admit that a disaster has actually occurred. In other words, they may not wish to recognize the vulnerability of their societies in the face of such an event and, indeed, their own inability effectively to cope with the effects thereof. An even more delicate situation may arise in case of an armed conflict, particularly when the State involved chooses to regard it as its internal affair. This is true not only with developing countries. Thus, twice between 1945 and 1949, the Netherlands embarked on extensive military operations to maintain (or, rather, restore) its supremacy over what it continued to regard as the Dutch East Indies (and what it since has recognized as the Republic of Indonesia); and each time it represented these operations as police actions. Similarly, France long continued to refer to the war in Algeria as a matter of maintaining public order and security. Again, the authorities in the United Kingdom contend to this day that the endless series of violent acts surrounding the situation in Northern Ireland is a public order problem to which the laws of armed conflict do not apply. While the last-mentioned situation may perhaps be sufficiently ambiguous to leave room for different views on its legal character, there seems to be less justification for such differences of interpretation in a case like Ethiopia, where important parts of the territory have long been firmly in the hands of parties other than the central government. Yet that government apparently denies to the present day that an armed conflict is in progress. The main reason for all such denials lies without doubt in the political sphere: for a government to recognize that a situation has developed into an armed conflict is apparently perceived as tantamount to recognition, in fact if not in law, of the existence of a significant political opponent. The point should be stressed that Article 3 common to the Geneva Conventions of 1949 expressly denies to such a factual recognition any legal effect: as provided in the last paragraph, “The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.” Unfortunately, this formal denial cannot alter the political appreciation of such a step. This brings to the fore the principle of sovereignty of the State. As noted before, at the time of Solferino, the admission of outside aid posed no special problems: the frontiers in Europe were not as hermetically closed as has later become customary, both here and elsewhere. Today, the acceptance or refusal of unsolicited offers of international humanitarian assistance rests entirely with the national authorities, as the guardians of the territorial sovereignty of the State. This is true in the event of any disaster, and it applies with even greater force to a situation of armed conflict. In the eyes of many, State sovereignty represents an almost sacred principle of international law, with the principle of non-intervention into the internal affairs of the State as a direct sequel. While the question of the exact scope of the latter principle in general international law may be disregarded here, it is important to note that in the particular context of international humanitarian law,

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it was recently reaffirmed in explicit terms, at any rate for the event of an internal armed conflict, with the adoption in 1977 of Article 3(2) of Protocol II: Nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs.

On the other hand, the principle that offers of relief “shall not be regarded as interference in the armed conflict or as unfriendly acts” was stated in so many words in Article 70 (“Relief actions”) of Protocol I. Turning from the recipient to the donor side, the picture is one of a multitude of potential donors; they may be governmental or private, national or international. Each institution or agency starts out from its own principles, pursues its own goals, operates on the basis of the information at its disposal (and not always shared with others) as well as of its own capabilities and expert knowledge. All this may easily lead to overlapping of activities and, with that, to competition among agencies; even, in the worst case, to friction or open conflict. One may ask whether in the light of these facts, grounds cannot be identified to give precedence to this or the other agency. Why, indeed, should not international humanitarian assistance be made the object of some form of overall organization? If this ideal solution remains impracticable, can anyone deny the obvious minimum need of coordination of these activities? In that case, what degree of control should rest with the national authorities in the recipient country? As experience shows, they may be inclined to prefer the institution or agency that serves their political interests best or does them least harm, and their interests do not necessarily coincide with those of the victims of the natural disaster or armed conflict. It would therefore be wrong in all cases to accede too readily to their desires, as this might lead to a result that from a point of view of fundamental principles of humanitarian assistance must be qualified as at least unsatisfactory. It is not here the place to enter into the details of these questions, as they will certainly be taken up by other speakers in the next two days. Suffice it to mention that in practice, some coordination may occasionally be found; it may be voluntary, or imposed by the recipient country. At least as often, however, one finds more or less bitter competition, both in the field and in fundraising activities. The point of fundraising brings yet another aspect to the fore: it is the utter dependence of private aid agencies on public opinion, and with that, the unmistakable influence of the media: the press, radio and television. As evidenced by practical experience, the influence of the media may be positive or negative, with respect to international humanitarian assistance in general or specific actions or agencies in particular. As a final point, some brief remarks should be made concerning international norm-setting. With regard to armed conflicts, an impressive body of treaty rules

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has been established over the years. The Geneva Conventions of 1949 together with the Additional Protocols of 1977, to mention only those, comprise over 550 articles. Yet, the rules relating to relief to the victims of armed conflicts have to this day remained fairly summary and continue to pay considerable respect to the territorial sovereignty of the State. To be sure, the rules that were finally adopted in 1977 signify a marked improvement over the pre-existing law; but even so, the compromise character of the recent rules is only too evident. As concerns international humanitarian assistance to the victims of disasters other than armed conflict, the situation is characterized by the virtually total absence of generally applicable, specific rules. Admittedly, relevance attaches here to norms of human rights, such as the right to health or the alleged right to development; and there is the idea of international solidarity. Yet for a State that wishes to parry such arguments, it is not difficult at all to do so with an appeal to its sovereignty. Here, nearly everything remains to be done. The serious shortcomings of the entire system of international humanitarian assistance, be it in case of armed conflict or other disasters and in regard to organization as much as to norm-setting, come to light every day. This leads to the obvious question: how do we proceed from here? Should we all join forces to bring about a major breakthrough, for instance, in the shape of a world-wide recognition of a right of humanitarian intervention? Or should one prefer a more step-by-step approach, aiming to achieve small improvements, for instance in the legal protection of children, while simultaneously continuing the never-ending work for the practical protection of the victims of concrete disasters, with its unavoidable ups and downs? To strive for a major breakthrough is always a worthy cause. Nonetheless, the road of small steps may make better going and should certainly not be neglected. Those who take that road should be aware that theirs is a long-term exercise, perhaps for the next 125 years!

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In 1949, Art. 23 of Convention IV had restricted the obligation of parties to an international armed conflict to allow the free passage of relief consignments intended for the civilian population of the adverse party, to “medical and hospital stores and objects necessary for religious worship”, and “essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.” Common Art. 3, on internal armed conflict, is entirely silent on the matter. The two Protocols of 1977 have brought significant improvements to the legal situation. Articles 70 and 71 of Protocol I extend the free passage in a situation of international armed conflict, to all supplies essential to the survival of the entire civilian population; and Art. 18(2) of Protocol II makes similar provision for a civilian population which “is suffering undue hardship owing to a lack of the supplies essential for its survival” in the event of an internal armed conflict. In either case the provision of relief remains dependent on consent of the belligerent party concerned.

Chapter 24 Non-Combatant Persons: A Comment to Chapter 11 of the Commander’s Handbook on the Law of Naval Operations*

1

Introduction

In the history of the development of the law of armed conflict, the year 1987 stood out in more than one respect. It was the 10th anniversary of the adoption, on 8 June 1977, of two Protocols Additional to the Geneva Conventions of 12 August 1949, one (Protocol I) relating to the protection of victims of international armed conflicts and the other (Protocol II) relating to the protection of victims of non-international armed conflicts. The Netherlands ratified both Protocols, thus joining the growing number of States parties to these instruments. President Reagan announced his decision to submit only Protocol II for Senatorial advice and consent. Last but not least, all U.S. naval commanders received Naval Warfare Publication 9, 1987, being a brand-new Commander’s Handbook on the Law of Naval Operations. Among the many recent publications about the state of and developments in the law of armed conflict, the Handbook is of special interest because, as an official U.S. publication following so shortly the President announcement, it may be expected to reflect the views of the present administration on the state of the law. This is not merely a matter of academic interest; the law of armed conflict relies for its continued existence and further development as much on custom as on the * 1

2

3

Published earlier as Chapter X of Horace B. Robertson, Jr. (ed.), The Law of Naval Operations, 64 U.S. Naval War College International Law Studies (1991) pp. 300-330. Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva 1974-1977 (1978) Vol. I, part 1, p. 12. [hereafter cited as Official Records]. On 26 June 1987, the Government of the Netherlands deposited its instruments of ratification of the two Protocols, with annexed declarations of understanding and a declaration accepting the competence of the International Fact-Finding Commission provided for by Art. 90 of Protocol I, thus becoming the 68th State Party to Protocol I and the 62nd to Protocol II, and the 10th State to make the declaration under Art. 90 of Protocol I; see 259 IRRC (1987) p. 425). Letter of Transmittal from President Ronald Reagan, Protocol II Additional to the 1949 Geneva Conventions and Relating to the Protection of Victims of Noninternational Armed Conflicts, S. Treaty Doc. No. 2, 100th Cong., 1st Sess., at III (1987); reprinted in 81 AJIL (1987), p. 910; see also Hans-Peter Gasser, “An Appeal for Ratification by the United States”, ibid., p. 912.

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conclusion of treaties, and the part of the Handbook relating to the law of armed conflict may be taken to represent United States opinio juris in this regard. As we shall see, the “views of the present U.S. administration” are a mixture of rules in treaties to which the United States is a party, rules of international customary law, and those new rules in Protocol I which the present U.S. administration has chosen to consider as positive developments. Obviously, the United States is not legally bound to apply any rule of the last-mentioned category. Conversely, its unilateral espousal of such new rules cannot effectuate a legal obligation upon its potential adversaries, whether parties to Protocol I or otherwise, to respect these rules in their relations with the United States. The focus in the present comment is on Chapter 11 of the Handbook, with its deceptively simple title “Noncombatant Persons”. Like the rest of the Handbook, Chapter 11 earns high marks for brevity; it is, in effect, a great deal shorter than the relevant provisions of treaties in force taken together. This exercise in abbreviation carried a double risk: for one thing, the drafters may have left out subject matter that might be regarded as of vital importance to U.S. naval commanders; for another thing, the necessary condensation of often complex treaty language into simpler, ostensibly clearer phrases may at times have resulted in what an outsider might consider an inadmissible loss of legal precision. The question needs to be examined as to what extent the drafters have succeeded in avoiding these risks. Section II of this essay takes a first look at the term “noncombatant persons” as used in the Handbook; it introduces the applicable treaties and goes into the question of what appears to be the scope of application of Chapter 11. In sections III and IV, the various categories of “noncombatant persons” pass in review, in the same order as they appear in the Handbook: the civilian population in general in section III; other categories of persons in section IV. Focal points are: conditions for recognition and protection as a “noncombatant person”, factors entailing loss of protection, and the treatment of the persons in question. Also in section IV, some attention is devoted to protective signs and symbols, the use of distinctive signals and means and methods of identification in general. A brief concluding section rounds off these comments. 2 “Noncombatant Persons”



2.1 The Term “Noncombatant” Although the term used in the title of Chapter 11 of the Handbook may appear simple enough, surely a “noncombatant” does not represent a simple notion at all. 4

Hereafter, in addition to the official sources, the reader is directed to a compilation of international agreements by Dietrich Schindler and Jiri Toman, The Laws of Armed Conflicts (1981) [hereinafter cited as Schindler & Toman].

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The term is used to indicate a broad range of people with very different characteristics. This is apparent from the introductory paragraph 11.1, which states in part: Noncombatants are those individuals who do not form a part of the armed forces and who otherwise refrain from the commission of hostile acts. Noncombatants also include those members of the armed forces who enjoy special protected status, such as medical personnel and chaplains, or who have been rendered incapable of combat by wounds, sickness, shipwreck, or capture.

When a lawyer is told that something “is” this but “also includes” something else, alarm-bells start ringing in his mind: are the notions thus brought together under one heading really similar in all relevant respects? His alertness grows when he notices that an earlier chapter of the Handbook (Chapter 5, to which paragraph 11.1 refers) uses much more cautious language. Paragraph 5.3, on Combatants and Noncombatants, begins by stating, in much the same words as those used in paragraph 11.1, that “[t]he term noncombatant is primarily applied to those individuals who do not form a part of the armed forces and who otherwise refrain from the commission or direct support of hostile acts.” It then explains that, “[i]n this context, noncombatants and, generally, the civilian population are synonymous.” Paragraph 11.3 adds that “[t]he civilian population consists of all persons not serving in the armed forces, militia, or paramilitary forces and not otherwise taking a direct part in the hostilities.” After this elucidation of what is offered as the primary meaning of the term, paragraph 5.3 informs the reader that “noncombatants” may also have entirely different connotations: The term noncombatants may, however, also embrace certain categories of persons who, although attached to or accompanying the armed forces, enjoy special protected status, such as medical officers, corpsmen, chaplains, and war correspondents. The term is also applied to armed forces personnel who are unable to engage in combat because of wounds, sickness, shipwreck, or capture.

2.2 Treaties Relating to “Noncombatant Persons” Without entering for the moment into the details of the various statements in paragraphs 5.3, 11.1 and 11.3, it appears useful to identify at the outset the treaties especially relevant to the present inquiry. It is surely a trite observation that, unfortunately, the law of armed conflict does not provide just one set of rules governing the position of all “noncombatants” as “people not involved in the

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fighting”, in the sense as used in the Handbook. Indeed, with one exception, the treaties in force do not use the term at all. The majority of the treaties concerned belong to what is commonly known as the “law of Geneva”, that is, the long list of conventions starting, modestly enough, with the ten articles of the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, of 22 August 1864, which over the course of time came to provide for the protection of an ever-widening circle of war victims. The Convention on the wounded and sick soldiers in the field of 1864 was followed by the wounded, sick and shipwrecked at sea in 1899; prisoners of war in 1929; and last but not least, civilians, mainly though not exclusively those in enemy or enemy-occupied territory, in 1949. While the “law of Geneva” knew this regular, step-by-step development, another part-of the law of armed conflict, governing conduct during hostilities and commonly referred to as the “law of The Hague”, was codified in a rather distant past by the Hague Peace Conferences of 1899 and 1907. After this feat the “law of The Hague” was for a long while left alone (and to customary develop5 6

7

8

9

10

The exception is Art. 3 of the Regulations on land warfare annexed to the Hague Convention (IV) of 18 Oct. 1907; see infra note 10. The Geneva Convention of 22 August 1864 on the relief of the wounded in the Field (1 Bevans 7) was superseded by the Geneva Convention of 6 July 1906 (35 Stat. 1885), which was replaced by the Geneva Convention of 27 July 1929 (47 Stat. 2074) and this, in turn, by the Geneva Convention (I) of 12 August 1949 (6 UST 3114) [hereafter cited as Geneva I]; Schindler & Toman, at pp. 213, 233, 257, 305. The Hague Convention (III) of 29 July 1899 adapting the Geneva Convention of 1864 to maritime warfare (32 Stat. 1827) was replaced by the Hague Convention (X) of 18 October 1907 (36 Stat. 2371) which, in turn, was replaced by the Geneva Convention (II) of 12 August 1949 (6 UST 3217) [hereafter cited as Geneva II]; Schindler & Toman, at pp. 221, 245, 333. The Geneva Convention of 27 July 1929 on the treatment of prisoners of war (47 Stat. 2021) was replaced by the Geneva Convention (III) of 12 August 1949 (6 UST 3316) [hereafter cited as Geneva III]; Schindler & Toman, at pp. 271, 355. The Geneva Convention (IV) of 12 August 1949 on protecting civilians (6 UST 3516) has not been replaced [hereafter cited as Geneva IV]; Schindler & Toman, at p. 427. The Hague Convention (II) of 29 July 1899, with annexed Regulations on land warfare (32 Stat. 1803) was replaced as between contracting Powers by the Hague Convention (IV) of 18 October 1907, with annexed Regulations (36 Stat. 2277) [hereafter cited as Hague IV Regulations]; Schindler & Toman, at p. 57. The Second Hague Peace Conference (1907) produced a series of conventions relating to matters of naval warfare: Convention VI – the status of enemy merchant vessels at the outbreak of hostilities; Convention VII – the conversion of merchant vessels into warships; Convention IX – bombardment by naval forces of land targets (36 Stat. 2351) [hereafter cited as Hague IX]; Convention XI – restrictions on exercising the right of capture (36 Stat. 2396); Schindler & Toman, at pp. 703, 709, 723, 731.

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ment). Major parts of this body of Hague law eventually came to be included in the “reaffirmation and development of international humanitarian law applicable in armed conflicts” of the 1970s that resulted in the adoption, in 1977, of the two Additional Protocols referred to above. For purposes of the present comment the following treaties are of particular significance: – the four Geneva Conventions of 1949 for the protection of war victims, viz., Convention I (wounded and sick on land); Convention II (wounded, sick and shipwrecked at sea); Convention III (prisoners of war); and Convention IV (civilians); – the Hague Regulations on land warfare, of 1899/1907, together with the Hague Convention (IX) on naval bombardment; and – the Additional Protocols of 1977. Examination of the relations between the various types of “noncombatant persons” listed in the Handbook and the categories of persons specified in the relevant treaties will be the main purpose of the next sections. 2.3

Scope of Application of Chapter 11

A preliminary point is the scope of application of Chapter 11 (and presumably, of the entire Part II of the Handbook, on the “Law of Naval Warfare”), both as regards time and place. Part II of the Handbook refers throughout to “armed conflict”, without any attempt at definition. In the law of armed conflict, the term encompasses both international and internal armed conflicts. Since 1949, Article 3 common to the four Geneva Conventions makes separate provision for the latter type of armed conflict. In 1977, Article 3 was supplemented by Protocol II. While the conduct of hostilities in an internal armed conflict need not be very different from the same sort of activities in an international one, the law differs significantly. One such difference is that the law relating to internal armed conflicts, whether in its 1949 or 1977 versions, does not recognize a separate category of “combatants”, as those persons who, in contradistinction to the rest of the population, “have the right to participate directly in hostilities.” Chapter 11 and Part II in general do not differentiate between the two types of armed conflict and appear to have been written with an eye to international armed conflicts in particular. Yet, the U.S. Navy may become involved in an internal armed conflict in two different situations: when the United States itself becomes the scene of such a conflict, or when it steps into an internal conflict elsewhere. The first case is probably so purely hypothetical that provision need not be made for it in a Commander’s Handbook on the Law of Naval Operations.

11

The quoted phrase is in Art. 43(2) of Protocol I.

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On the other hand, in United States practice, active involvement in other nations’ conflicts is not a rare occurrence at all. Outside intervention in an internal armed conflict habitually gives rise to interesting legal questions: when does this or the other part of the law of armed conflict apply, and to whom? Does it matter whether the intervention is on the side of the incumbent authorities or on the other side? Refreshingly, the Handbook leaves all these more or less pedantic questions for what they are and confines itself to one maximum solution: when the U.S. Navy is involved in a shooting war, it shall apply the rules governing international armed conflict. One can only be gratified with such an outright choice for the rules providing greatest protection to “noncombatant persons” and other war victims. Another matter is the territorial scope of application. Part II being concerned with “Naval Warfare”, one might think of the sea as the natural theatre of naval operations. Yet, a perusal of the text leaves little doubt that it is designed to be applied on a far broader basis and, in effect, on land and in the air as much as at sea. A case in point is Chapter 11, which gives a good deal of attention to the protection of the civilian population against the effects of hostilities, as well as to the situation of persons parachuting from disabled aircraft and who may or may not land in territory controlled by their own forces. Conversely, the whole of Part II pays surprisingly little attention to hospital ships. One may perceive in this wide scope of application of Part II, and of Chapter 11 in particular, a recognition that “naval operations” include those of the naval air arm, amphibious forces and the marines, and that these do quite often extend to land. It remains to be seen whether the chapter has not thereby come to include details that might be regarded as superfluous, and to neglect issues that could be vital. 3 The Civilian Population 3.1

General Protection against Effects of Hostilities

As related in the previous section, paragraphs 5.3, 11.1 and 11.3 of the Handbook introduce the civilian population as the “noncombatant persons” of choice. The phrase “civilian population”, as defined in paragraph 11.3, represents the broad mass of all those who, although themselves in no way directly involved in the fighting, are likely to be adversely effected by it. These people stand in need of “general protection against the effects of hostilities”, no matter when and where these evil effects occur.

12

For a modern, thoroughly researched discussion of the question of the law applicable in mixed conflicts, see M. Hess, Die Anwendbarkeit des humanitären Völkerrechts, insbesondere in gemischten Konflikten (1985).

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In the traditional dichotomy between the “law of The Hague” and the “law of Geneva”, general protection of the civilian population belongs to the former. Yet, the treaties adopted by the Hague Peace Conferences of 1899 and 1907 deal with the subject in a rather stepmotherly fashion. They provide two sets of rules, one of which deals summarily with certain military operations likely to affect the civilian population (notably, bombardments and sieges). The other set of rules defines the legal character and effects of belligerent occupation and goes into the relations between the occupying power and the authorities and inhabitants of occupied territory. A striking feature of the old rules on sieges and bombardments is their silence on the plight of the civilians themselves as human beings exposed to the effects of such warlike activities. This wall of silence surrounding the civilian population as potential victims of hostilities suffered a first, modest, breach in 1949 with the adoption of the Fourth Convention Relative to the “Protection of Civilian Persons in Time of War.” For present purposes, it may suffice to refer to Part II, General Protection of Populations Against Certain Consequences of War, that serves to provide some protection, in particular, to certain specially vulnerable categories of civilians. The “consequences” in question may arise as much from the conduct of war on land as from activities at sea as, for example, naval blockade. While “general protection of the civilian population against the effects of hostilities” long remained a neglected and, hence, somewhat indeterminate 13

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Rules of this type are found in Arts 25-27 of the Hague IV Regulations: prohibition on the “attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended”; recognition of a duty of the “officer in command of an attacking force … before commencing a bombardment, except in cases of assault, [to] do all in his power to warn the authorities”, as well as of a duty to take “all necessary steps … to spare; as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes.” With respect to naval bombardments, Art. 2 of Hague IX lists targets that, although located within undefended ports, towns, villages, dwellings, or buildings, are excluded from the general prohibition and may be bombarded as military objectives: “military works, military or naval establishments, depots of arms or war materiel, workshops or plant which could be utilized for the needs of the hostile fleet or army, and the ships of war in the harbour.” Rules of this type are found in Section III of the Hague IV Regulations (Military Authority over the Territory of the Hostile State). Of special importance is Art. 23 of Geneva IV. It provides for “the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians” of the adversary, as well as of “all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.” See infra text under the subsection entitled “Protection under the Fourth Convention.”

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notion, its contours became more sharply defined after World War II. The first occasion was the XXth International Conference of the Red Cross, held in 1965 in Vienna. It adopted a resolution which “solemnly declares” four “general principles of the Law of War”. Of relevance here are the twin principles “that it is prohibited to launch attacks against the civilian populations as such”, and “that distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible.” The UN General Assembly subsequently affirmed three of the four principles, including the two principles on protection of the civilian population, by a unanimously adopted resolution of 19 December 1968. As this commentator wrote earlier: Although the General Assembly of the United Nations does not possess any formal legislative powers in matters of international law, the unanimous reaffirmation of the principles in question as valid norms of international law can certainly be regarded as an authoritative statement of the law. From this moment it has become very difficult for a Member of the United Nations to deny the validity of the principles spelt out in the Resolution, and of the principle of distinction in particular.

As the drafting history of the 1977 Additional Protocols shows, no “Member of the United Nations” nor, for that matter, any other State has ventured to deny the

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The full text of Res. XXVIII, protecting civilians from indiscriminate warfare, appears in Schindler & Toman. In relevant part the resolution states that “indiscriminate warfare constitutes a danger to the civilian population and the future civilization,” and solemnly declares that all Governments and other authorities responsible for action in armed conflicts should conform at least to the following principles: – that the right of the parties to a conflict to adopt means of injuring the enemy is not unlimited; – that it is prohibited to launch attacks against the civilian populations as such; – that distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible; – that the general principles of the Law of War apply to nuclear and similar weapons. UNGA Official Records: Resolutions Adopted by the General Assembly During its Twenty-Third Session, 24 September-21 December 1968. Resolution 2444, A/7218 (1969) pp. 50-51. Frits Kalshoven, The Law of Warfare, A Summary of its Recent History and Trends in Development (1973), p. 44.

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validity of the principles. On the contrary, Protocol I enshrines the principles and expands them into a set of detailed rules. The Handbook reiterates the three principles of December 1968 in paragraph 8.1, Principles of Lawful Targeting, of Chapter 8, The Law of Naval Targeting. In order to examine what it has to say in detail about the protection of the civilian population, it is necessary to pay somewhat closer attention to the two principles concerned, beginning with the principle prohibiting attacks on the civilian population. 3.2 Civilian Population Not the Object of Attack Clearly, this prohibition is not, on principle, subject to any considerations of policy, opportunity, or whatever. The only conceivable exception might perhaps lie in acts of reprisal against the enemy civilian population, a form of action that customary international law cannot with certainty be stated to forbid. Protocol I aims to seal this gap by categorically prohibiting reprisals against civilians, civilian objects in general (Arts. 51, 52) and a long list of specially protected civilian objects in particular (Arts. 53-56). These prohibitions are the outcome of difficult negotiations at the Diplomatic Conference of 1974-1977, and they have since remained the subject of sharp criticism from some quarters. None of the States becoming party to Protocol I have made an express reservation to the provisions at issue. Close to a formal reservation comes the “understanding” of Italy, stating that it shall react to grave and systematic violations of Articles 51 and 52 by all permissible means under international law, with a view to preventing further violations. Fortunately, this poorly masked threat of reprisal is preceded by a formal acceptance of the competence of the International FactFinding Commission, to be established in accordance with Article 90, to “enquire

19

Art. 48 of Protocol I lays down the basic rule: “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.” Arts. 51 and 52 provide detailed rules elaborating the prohibition to attack the civilian population or civilian objects. Subsection (1) of Art. 57 states the second principle: “In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.” Subsections (2)-(5) elaborate this principle into a set of detailed provisions. Protocol II, on the one hand, reaffirms in Art. 13 the principle of general protection and the prohibition against making the civilian population the object of attack. On the other hand, it provides no definition of military objectives (and contains only one reference to this concept, in Art. 15 on the protection of works and installations containing dangerous forces). Nor does it expressly refer to the principle of distinction.

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into any facts alleged to be a grave breach as defined in the Conventions and this Protocol or other serious violation of the Conventions or of this Protocol.” It is a matter of some considerable regret that the Handbook states bluntly, in subparagraph 6.2.3 (Reprisal) of Section 6.2 (Enforcement of the Law of Armed Conflict), that “[r]eprisals may be taken against enemy armed forces; enemy civilians, other than those in occupied territory, and enemy property.” It is not at all certain that this statement is in conformity with customary international law. While the prohibition of such acts cannot be stated with certainty either, the most that can be said is that the law is in a state of indecision. In these circumstances, the blunt affirmation, in a brand-new military manual of a major military power, of an unquestioned right of reprisal against the civilian population represents a most unwelcome contribution to the “development of international humanitarian law applicable in armed conflicts.” An additional point of criticism is that the list in paragraph 6.2 of the “various means available to belligerents under international law for inducing the observance of legitimate warfare” does not include recourse to an outside factfinding mechanism. Evidently, as the United States is not presently becoming a party to Protocol I, it is not in a position to accept the competence of the Article 90 Commission. Yet, the road to ad hoc neutral enquiry is always open, and the Handbook should make the point explicit. Instead, it simply lists as the first available means of law enforcement: “Publicize the facts with a view toward influencing world public opinion against the offending nation.” This may be quite a useful means against the offender once the facts have been established, but this is precisely where the shoe pinches. Giving publicity to non-established facts is no more than making allegations. After this short excursion into the field of reprisals as a possible exception to the principle that the civilian population shall not be the object of attack, we return to the main principle. Application of the principle may in practice be thwarted by the practical difficulty of determining civilian status. As will be seen hereafter, Article 50(1) of Protocol I provides that whenever there is “doubt whether a person is a civilian, that person shall be considered to be a civilian.” While this rule, if faithfully applied, may largely solve the problem with respect to individuals, another matter altogether is the character of “the civilian population” as a group of persons. Will, for instance, the inhabitants of a town or village continue to enjoy immunity from attack when they have some few sol-

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251 IRRC (1986) p. 114. On the matter of wartime reprisals see Frits Kalshoven, Belligerent Reprisals (1971), and on the negotiations in the Diplomatic Conference of 1974-1977, an article by the same author “Reprisals in the CDDH” in Robert J. Akkerman et al. (eds.), Declarations on Principles, A Quest for Universal Peace (1977) pp. 195-216. See also Stanislaw E. Nahlik, “Belligerent Reprisals as Seen in the Light of the Diplomatic Conference on Humanitarian Law, Geneva 1974-1977”, 2 Law and Contemporary Problems (1978) p. 36.

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diers quartered among them? And what of a refugee camp where a good number of the inhabitants are found to be combatants, fully equipped as such? In an attempt to resolve this issue, Article 50(3) of Protocol I provides that “[t]he presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” This may be the correct solution when, in such a mixed situation, civilians constitute the overwhelming majority. But what if the balance between civilians and combatants is less evidently in their favor? From a military point of view, the immunity of some few civilians cannot forever shield an important military objective from attack. Protocol I tackles this dilemma in more than one way. First, Article 51(7) issues a stern warning against misusing the civilian population to “render certain points or areas immune from military operations.” The point is reinforced by the obligation of belligerent parties to protect civilians under their control by taking “precautions against the effects of attacks.” Article 58 (which bears this caption) requires, as self-evident measures that each party shall take “to the maximum extent feasible”, the removal of civilians from the vicinity of military objectives, and, the other way round, military objectives from civilians. Obviously, there can be no firm guarantee that this will be done. What, therefore, if one side disregards the prohibitions set forth in Article 51(7), so that the other side cannot carry out an attack on a military objective without at the same time seeming to perpetrate an “attack on the civilian population?” To this pressing question, Article 51(8) gives a rather evasive reply. The crux of the matter is that “the parties” are reminded of their “obligation to take the precautionary measures provided for in Article 57.”

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Article 51(7) provides that: The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations. The following measures are listed: (a) without prejudice to Article 49 of the Fourth Convention, endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives; (b) avoid locating military objectives within or near densely populated areas; (c) take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations. Article 51(8) reads: “Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and

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This brings us to the other fundamental principle at stake, viz., the obligation of belligerent parties, in carrying out military operations, to spare the civilian population as much as possible. Article 57(1) states the principle: “In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.” Article 57(2-4) demonstrates clearly that the protection offered by this principle is, in contrast with the first principle, essentially relative in nature, as situations may arise where civilians simply cannot be spared. The order of preference in Article 57 is, however, clear: first, try to avoid any incidental loss or collateral damage; if this is impossible, then at least try to minimize it; and in the last resort, refrain from pressing an attack that would cause excessive, that is, disproportionate damage to the civilian population. These are no mean requirements to put to the military. Yet, they do not appear to be beyond the capacities of a well-trained, well-disciplined armed force, and they doubtless represent the right attitude of mind for any self-respecting soldier. They are even entirely commendable from the point of view of economical use of military means. At the same time, translation of the juridical phraseology of the Protocol into practical, easily understandable terms is of course necessary. 3.4 The Handbook on General Protection In the Handbook the detailed rules on protection of the civilian population are spread over several sections. Confining ourselves for the moment to Chapter 11, the relevant paragraphs are 11.2 and 11.3. Paragraph 11.2, Protected Status, purports to deal with general aspects of the protection of all “noncombatant persons”. Whether this is correct for all categories shall be examined infra. Applied to civilians, the rules it contains fairly accurately reflect some main aspects of the law as codified in Protocol I. It mentions the requirement of advance warning, adding that “[s]uch warnings are not required, however, if mission accomplishment, including the security of attacking forces, is premised on the element of

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civilians, including the obligation to take the precautionary measures provided for in Article 57.” Article 57(2)(a) provides inter alia that those who plan or decide upon an attack shall: (ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects; (iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.

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surprise.” It places on record the “affirmative duty” of “a party to an armed conflict that has control over civilians … to remove them from the vicinity of targets of likely enemy attack and to otherwise separate military activities and facilities from areas of [civilian] concentration.” It affirms that: “Deliberate use of [civilians] to shield military objectives from enemy attack is prohibited.” And it concludes that: “The presence of [civilians] within or adjacent to a legitimate target does not, however, preclude its attack.” Although all this may appear acceptable enough, it is far from giving the full story. In effect, the opening sentence of paragraph 11.2 sets the wrong tone, in that it provides: The law of armed conflict prohibits making noncombatant persons the object of intentional attack and requires that they be safeguarded against injury not incidental to military operations directed against combatant forces and other military objectives.

While this is a correct statement as far as it goes, the point is that it does not go far enough. Lacking is the recognition that civilians must be “safeguarded”, first and foremost, against injury that is “incidental to military operations directed against combatant forces and other military objectives.” Paragraph 11.2, in short, does not take up, or even refer to, the problem of incidental loss and collateral damage, let alone recognize proportionality as the ultimate standard of justifiable injury to civilians. For this, the reader must look elsewhere in the Handbook, notab1y in paragraph 8.1.2.1, Incidental Injury and Collateral Damage, of Chapter 8, The Law of Naval Targeting. Here, the naval commander is urged to “take all practicable precautions, taking into account military and humanitarian considerations, to keep civilian casualties and damage to the absolute minimum consistent with mission accomplishment and the security of the force”, and he is required to “determine whether incidental injuries and collateral damage would be excessive, on the basis of an honest and reasonable estimate of the facts available to him.” The commander is moreover required to “decide, in light of all the facts known or reasonably available to him, including the need to conserve resources and. complete the mission successfully, whether to adopt an alternative method of attack, if reasonably available, to reduce civilian casualties and damage.” This represents a clear attempt to summarize the law relating to protection of the civilian population. The text is open to the criticism that it lays too heavy an accent on “mission accomplishment”. This undefined concept, that has no place in positive international law, may all too easily be misused as an excuse for otherwise unjustifiable acts of war affecting the civilian population. This being said, the inclusion of the paragraph in a part of the law that came to be clarified only with the adoption of Protocol I, is warmly welcomed. The same goes for paragraph 8.1.2, Civilian Objects, specifying certain limitations

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on the right to attack objects of special importance to the civilian population. The present commentator merely wishes to add that he would have preferred to see both paragraphs repeated in Chapter 11; after all, the distinction between “naval targeting” and “noncombatant persons” is not rigidly maintained elsewhere either. Returning once again to Chapter 11, paragraph 11.3 states: Unlike military personnel … civilians are immune from attack unless they are acting in direct support of the enemy’s war-fighting or war-sustaining effort. Civilians providing command, administrative, or logistic support to military operations are subject to attack while so engaged. Similarly, civilian employees of naval shipyards, merchant seamen in ships carrying military cargoes, and laborers engaged in the construction of military fortifications, may be attack [sic] while so employed.

This statement too, is open to criticism. First, it creates the erroneous impression that in given situations, civilians may be deliberately chosen as the target of attack even though they are not taking a direct part in hostilities. A more accurate statement would be that in such situations, civilians are more than normally exposed to the risks of war because they happen to be in, on, under, or near an object that is open to attack as a military objective. In such situations, the applicable principle is that they “must be spared as much as possible” – not that they provide fair game. Over and above this fundamental criticism, the above phrases suffer from an apparent tendency to construe the law – and thereby to influence practice – in a sense that goes to the detriment of the civilian population. One can accept use of the phrase, activities “in direct support of the enemy’s war-fighting effort.” To add “war-sustaining effort” is going too far, however, as this might easily be interpreted to encompass virtually every activity in the enemy country. 3.5 “Civilians” and “Civilian Population” In the above, the notions of “civilian” and “civilian population” were taken for granted. Internationally accepted definitions for each of these notions were intro25

As the late Professor Waldemar Solf wrote in Michael Bothe et al., New Rules for Victims of Armed Conflicts, Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (1982) p. 303: [C]ivilians providing only indirect support to the armed forces, such as workers in the defense plants or those engaged in distribution or storage of military supplies in rear areas, do not pose an immediate threat to the adversary and therefore would not be subject to deliberate individual attack. It is obvious, however, that they assume the risk of incidental injury as a result of attacks against their places of work or transport.

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duced in Protocol I. According to Article 50(2), “[t]he civilian population comprises all persons who are civilians.” A civilian is, according to Article 50(1), “any person who does not belong to one of the categories of persons referred to in Article 4A(1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol.” This definition-by-reference may be reduced to the statement that the civilian population comprises all those persons who are not members of the armed forces. (The latter notion is taken here in a broad sense, including armed groups such as militias, volunteer corps and organized resistance movements that, although not forming part of the regular armed forces, respect certain specified conditions, with recognizability as a most essential one among them). The second sentence of Article 50(1) emphasizes that “[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” It is a matter of some regret that this important provision is not reflected in the Handbook. Not that the rule represents any great innovation in the law of armed conflict; surely, it could hardly be otherwise. Yet to remind military commanders of this necessary premise in their contacts with unknown persons remains extremely useful. 26

Subparagraphs (1) and (2) of Art. 4(A) figure infra in Section IV on “other ‘noncombatant persons’”, subsection “Prisoners of War”. Subparagraphs (3) and (6) read as follows: A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. [...] (6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. Art. 43 of Protocol I reads as follows: 1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict. 2. Members of the armed forces of a Party to the conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities. 3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.

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Up to a point, the definition in Article 50(2) is accurately reflected in the text of paragraph 11.3 (as quoted in section II infra). The most obvious deviation resides in the qualifying phrase “and not otherwise taking a direct part in hostilities.” Paragraph 11.3(2) is even more explicit: Civilians who take a direct part in hostilities by taking up arms or otherwise trying to kill, injure, or capture enemy persons or destroy enemy property lose their immunity and may be attacked. Similarly, civilians serving as lookouts, guards, or intelligence agents for military forces may be attacked.

Similar language is not found in Article 50. Indeed, Article 51(3) provides that: “Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.” This sentence differs in more than one respect from the language in paragraph 11.3 of the Handbook. First, while the latter text carries the suggestion of a permanent loss of status and protection, Article 51(3) makes abundantly clear that the loss of protection is dependent on, and does not outlast, the activities at issue. In other words, the law is that a civilian who participated directly in hostilities but who has terminated his participation, is once again fully entitled to protection as a civilian and, hence, immune from attack (although he is liable to be punished for his hostile acts). To be in accordance with the rule in Protocol I, the loss of immunity in paragraph 11.3 should not be understood as a permanent loss of status but, rather, as a temporary suspension of protection. The Handbook could be clearer on this score. Another notable aspect is the terms by which paragraph 11.3 sets out to make the abstract notion of “direct participation in hostilities” more tangible. That “taking up arms or otherwise trying to kill, injure, or capture enemy persons” are listed under this heading may seem acceptable enough. Yet, the “enemy persons” may themselves be engaged in an unlawful act against civilian life or property, thereby justifying an act in self-defense on the part of the threatened civilians. Does the Handbook simply assume that U.S. naval personnel will not engage in such evil ways? A stern warning against any such conduct justifying forceful counter-measures on the part of the victims might be in order. The next specific act mentioned in paragraph 11.3, “trying to destroy enemy property”, is altogether too broad and vague to justify, in all cases, loss of protection as a civilian. It is just about as easy to think of instances where this consequence is justified, as of other ones where this is certainly not the case. The phrase should either be specified or deleted. Is it correct to assert, as paragraph 11.3 does, that “civilians serving as lookouts, guards, or intelligence agents for military forces may be attacked”? This is yet another example of a statement that is simply too sweeping to guarantee that civilians shall not be attacked without just cause.

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The present commentator regrets the apparent tendency in Chapter 11 to construe “direct participation in hostilities” in such wide terms. It is, of course, acknowledged that the concept is notoriously difficult to construe, and that the task of doing so falls to the competent national authorities. As the late Professor Waldemar A. Solf wrote, “As the interpretation of these terms may affect matters of life or death, it is indeed .regrettable that the ambiguities are left for resolution to the practice of States in future conflicts.” A good starting point for a narrower construction might be in the following quotation: “‘Direct’ participation means acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces.” 3.6

Levee en Masse

Reference should be made here to the levee en masse as a special case warranting attacks on civilians. Ever since the Hague Regulations on land warfare, 1899, the law has recognized that “[i]nhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units” are not liable to punishment for their warlike acts and, when captured, are entitled to prisoner-of-war status, “provided they carry arms openly and respect the laws and customs of war.” The difference between participants in a levee en masse and the civilians of Article 51(3) resides not so much in the treatment they will get while engaged in active hostilities. They are all equally open to attack. However, when they fall into enemy hands while so engaged, members of the former category are not liable to be punished for their warlike acts and are entitled to prisoner-of-war status, whereas persons of the latter type are not entitled to either prerogative. Again, when the enemy gets hold of persons of either category only after they returned to normal “civilian” life, he must leave the participants in the levee en masse untouched but may still put the other individuals on trial. In view of the apparent broad scope of application of the Handbook, and keeping in mind the possibility of U.S. forces taking part, e.g., in an amphibious operation that the inhabitants of the territory concerned may be expected to regard as an invasion, the levee en masse should not remain unnoticed.

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M. Bothe et al., supra note 25 at p. 302. ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987) p. 619. The quoted text is from Art. 4(A)6 of Geneva III. This does not materially differ from the earlier text of Art. 2 of the Hague IV Regulations.

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Protection under the Fourth Convention

As noted earlier in this section, a separate Convention for the protection of civilians saw the light in 1949. Part II of this Fourth Convention deals, as its title indicates, with the “general protection of populations against certain consequences of war.” The consequences envisaged here are not, however, the effects of hostilities on the civilian population in general but, rather, the risks threatening certain especially vulnerable categories of civilians, such as wounded, sick and aged persons, children under fifteen, expectant mothers, and mothers of children under seven. The risks in question may arise as much from the conduct of war on land as from activities at sea such as, for example, naval blockade. In this respect, reference may be made once again to Article 23. This Article outlaws the infliction of a total blockade in complete disregard of the fate of the civilian population. In the Handbook, subparagraph 7.7.3, Special Entry and Exit Authorization, of paragraph 7.7, Blockade, briefly refers to this matter, stating that “neutral vessels and aircraft engaged in the carriage of qualifying relief supplies for the civilian population and the sick and wounded should be authorized to pass through the blockade cordon.” Another fleeting reference to a subject dealt with in Part II of the Fourth Convention is found in subparagraph 6.2.2, The International Committee of the Red Cross (ICRC). It mentions the task assigned to the ICRC under the Geneva Conventions, inter alia, of “offering its ‘good offices’ to facilitate establishment of hospitals and safety zones.” This reflects the possibility, recognized in Article 14, for parties to a conflict to establish hospital and safety zones, so organized as to protect especially vulnerable categories of people from the effects of war. Part III of the Fourth Convention, entitled “Status and Treatment of Protected Persons,” provides for the protection of those civilians who are considered “protected persons” under Article 4. The protection of this Part extends to persons who find themselves, for whatever reason, in enemy territory or in territory under enemy occupation. For either situation, Part III contains elaborate sets of rules. One section deals at length with the treatment of internees, laying down rules that closely resemble those applicable to prisoners of war. While the Handbook does not pay express attention to belligerent occupation, Chapter 11 does contain a paragraph 11.9 on Interned Persons. Rigorously condensing the vast mass of treaty provisions to a few clear lines, it succeeds remarkably well in bringing out the essence of the “humane treatment” due such “protected persons”. 30 31

See supra note 15. Protected persons are “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation in the hands of a Party to the conflict or Occupying Power of which they are not nationals,” but excluding, among others, persons who are protected under Geneva I, II and III.

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Civilians under Special Protection

The law of armed conflict singles out for special protection certain specified categories of civilians, either because they are regarded as especially vulnerable or on account of the functions they perform. The Handbook also, in various chapters, pays occasional attention to the situation of these persons. As the rules relating to the protection of these diverse categories of civilians are closely linked to those on the status and protection of members of the armed forces who qualify for special protection, they are dealt with in the next section. 4

Other “Noncombatant Persons”

4.1 Medical Personnel and Chaplains After the civilian population, paragraph 11.1 lists “medical personnel and chaplains” as a first category of “members of the armed forces who enjoy special protected status.” Paragraph 11.5 enlarges upon the point: “Medical and dental officers, technicians and corpsmen, nurses, and medical service personnel, have special protected status when engaged exclusively in medical duties and may not be attacked.” As regards chaplains, the Section specifies that in order to “enjoy protected status equivalent to that of medical personnel” they must be “engaged in ministering to the armed forces.” While paragraph 11.5 provides an undivided list of the medical personnel who all qualify for the same protected status, the treaties in force recognize certain distinctions. For present purposes, importance attaches to the distinction between permanent and temporary personnel. Article 24 of the First Convention defines the position of the permanent military medical staff and chaplains, as follows: Medical personnel exclusively engaged in the search for, or the collection, transport or treatment of the wounded or sick, or in the prevention of disease, staff exclusively engaged in the administration of medical units and establishments, as well as chaplains attached to the armed forces, shall be respected and protected in all circumstances.

As regards the situation at sea, Articles 22 and 36 of the Second Convention provide similar protection for “the religious, medical and hospital personnel” of military hospital ships. The above persons are, so to speak, “noncombatants” by profession. They are, by virtue of their function, permanently precluded from taking an active part in hostilities. There can be little doubt that the term “noncombatants” in Article 3 of the Hague Regulations (“The armed forces of the belligerent parties may consist

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of combatants and noncombatants”) refers to the medical personnel and chaplains of the armed forces in the first place. Almost but not entirely on a par with these prototypical “noncombatants” are the temporary paramedical personnel. Article 25 of the First Convention provides that: Members of the armed forces specially trained for employment, should the need arise, as hospital orderlies, nurses or auxiliary stretcher-bearers, in the search for or the collection, transport or treatment of the wounded and sick shall likewise be respected and protected if they are carrying out these duties at the time when they come into contact with the enemy or fall into his hands.

While a strong preference for non-violent behavior or even a sense of vocation may have prompted these “members of the armed forces” to apply for such special training, they enjoy noncombatant status only on a temporary basis, when they are actually employed in one or other of the above functions. At other moments they may be occupied in a normal combatant capacity, and may then act as such with impunity. Comparing the above treaty provisions with paragraphs 11.1 and 11.5 of the Handbook, it appears that the Handbook unacceptably oversimplifies matters. Mention of the permanent and temporary medical personnel in one breath leaves the reader with the false impression that like the auxiliary personnel, members of the permanent medical staff depend for their protected status on “being engaged exclusively in medical duties”, a misunderstanding that could and should be avoided. The ground-rule for the treatment of (permanent or temporary) medical personnel and chaplains is already given in the above treaty texts: they must be “respected and protected.” It follows that they shall not be the object of attack. An obvious precondition is that they can be recognized in their quality as medical personnel or chaplains. As to this, a surgeon who performs an operation in a military field hospital without wearing the “armlet bearing the distinctive emblem” prescribed by Article 40 of the First Convention, will not lightly be mistaken for someone who is “taking a direct part in hostilities.” On the other hand, uniformed auxiliary medical personnel searching for wounded in the field run a serious risk of being mistaken for unprotected combatants if they fail to wear the “white armlet bearing in its centre the distinctive sign in miniature” as prescribed in Article 41 of the First Convention. Subparagraph 11.10.6 correctly reflects this point. The Conventions do not state in so many words that permanent military medical personnel and chaplains, and the temporary personnel while engaged in a paramedical function, shall themselves refrain from taking an active part in hostilities. Yet this is an evident condition for effective immunity from attack. A chaplain who, arms in hand, leads an attack (as seems to have happened in Viet

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Nam) cannot (and probably does not) expect to be respected as a “noncombatant.” On the contrary, his active participation in hostilities constitutes an unlawful act of war and, hence, a war crime. Medical or paramedical personnel who perpetrate a similar act under the cover of the red cross or red crescent may, under the terms of Article 85(3)(f ) of Protocol I, be guilty of an act of perfidy amounting to a grave breach of the Protocol. This point is stated in paragraph 12.2 (Misuse of Protective Signs, Signals and Symbols) of Chapter 12 (Deception During Armed Conflict) of the Handbook. The paragraph explains that acts of the above type undermine the effectiveness of protective signs, signals, and symbols and thereby jeopardize the safety of noncombatants and the immunity of protected structures and activities. Another matter altogether is that medical personnel may be armed and “use the arms in their own defence, or in that of the wounded and sick in their charge” (Art. 22, Convention I). Paragraph 11.5 correctly specifies that the arms must be “small arms”. It adds that the arms may also serve “for protection from marauders and others violating the law of armed conflict.” One senses here a typical reflection of the asserted constitutional right of all Americans to carry a weapon in self-defense. While “protection from marauders” seems all right, the present commentator has some difficulty with the added category of “others violating the law of armed conflict.” His fear would be that such a vague phrase might easily lead to confusion. Upon capture, permanent military medical personnel and chaplains “shall be retained only in so far as the state of health, the spiritual need and the number of prisoners of war require.” Thus retained, they shall not themselves be deemed prisoners of war (Art. 28, Convention I). Those who are not retained “shall be returned to the Party to the conflict to whom they belong, as soon as a road is open for their return and military requirements permit” (Art. 30). Temporary personnel, on the other hand, “shall be prisoners of war, but shall be employed on their medical duties in so far as the need arises” (Art. 29). As against all this, paragraph 11.5 simply states that: “Medical personnel and chaplains falling into enemy hands do not become prisoners of war.” And the next sentence draws the equally sweeping conclusion that, “[u]nless their retention by the enemy is required to provide for the medical or religious needs of prisoners of war”, they all “must be repatriated at the earliest opportunity.” Not specifically mentioned in the Handbook, but falling in the same class and under the same protections as the permanent military medical personnel, are their civilian colleagues on the staff of duly recognized Red Cross, Red Crescent or other voluntary aid societies (Art. 26, Convention I), the religious, medical and hospital of other than military hospital ships (Arts. 24 and 36, Convention II) and, according to Article 20 of Convention IV “persons regularly and solely engaged in the operation and administration of civilian hospitals, including the personnel engaged in the search for, removal and transporting of and caring for

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wounded and sick civilians, the infirm and maternity cases.” As for the Red Cross and other civilian personnel, they “may not be detained” and “shall have permission to return to their country, or if this is not possible, to the territory of the Party to the conflict in whose service they were, as soon as a route for their return is open and military considerations permit” (Art. 32, Convention I). 4.2

Combatants in Various Situations of Distress

Of a different character altogether are the next class of “noncombatant persons” listed in paragraphs 5.3 and 11.1: members of the armed forces “who have been rendered incapable of combat by wounds, sickness, shipwreck, or capture.” Such persons differ radically from medical personnel and chaplains in that they find themselves in a noncombatant position, not as a matter of vocation, profession or preference but by accident, or indeed by a stroke of bad luck. They are first and foremost combatants and, as such, are not precluded in principle from taking up arms against the enemy. A wounded soldier is fully entitled to open fire on an adversary, provided he does not do so while feigning to be incapacitated by his wounds. Even when taken prisoner, a soldier retains his capacity and status as a combatant; thus, he may escape with impunity, and his national legislation may even oblige him to attempt to do this. Paragraph 11.4, The Wounded and Sick, states the principle that “[m]embers of the armed forces incapable of participating in combat due to injury or illness may not be the subject of attack.” Paragraph 11.8, Prisoners of War, adds the equally important principle that when they are given medical treatment, “no distinction among them will be based on any grounds other than medical ones.” Paragraph 11.6, The Shipwrecked, extends similar protection to all “[s]hipwrecked persons, whether military or civilian.” Persons belonging to the category of the shipwrecked “include those in peril at sea or in other waters as a result of either the sinking, grounding, or other damage to a vessel in which they are embarked, or of the downing or distress of an aircraft.” Obviously, the above comments about “noncombatants against their will” do not apply to the civilians among the shipwrecked. That they are placed on the same footing as the military shipwrecked is easily understood in the light of the situation at sea, where shipwreck means the same extreme danger for everyone and where rescue without discrimination has become more or less the natural thing to do. Equally self-evident, although phrased in such complicated “legal” terms as to be open to interpretation in practice, are the exceptions made in the second subparagraph of paragraph 11.6: Shipwrecked persons do not include combatant personnel engaged in amphibious, underwater, or airborne attacks who are proceeding ashore, unless they are clearly in distress and require assistance. In the latter case they qualify as ship-

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wrecked persons only if they cease all active combat activity and the enemy has an opportunity to recognize their condition of distress.

The first sentence of paragraph 11.8, Prisoners of War, contemplates situations of distress combatants may find themselves in at the time of being taken prisoner: Combatants cease to be subject to attack when they have individually laid down their arms to surrender, when they are no longer capable of resistance, or when the unit in which they are serving or embarked has surrendered or been captured.

This language corresponds in the main with the provision in Article 41(1) of Protocol I, that “[a] person who is recognized or who, in the circumstances, should be recognized to be hors de combat shall not be made the object of attack.” One missing element is, of course, the affirmative duty of the adversary to recognize the person in question as being hors de combat. For the rest, the specific situations where paragraph 11.8 considers a combatant to be hors de combat do not markedly differ from those set forth in Article 41(2) of Protocol 1. A situation comparable to that of the combatant hors de combat is dealt with in paragraph 11.7, Parachutists. It provides in part: Parachutists descending from disabled aircraft may not be attacked while in the air and, unless they land in territory controlled by their own forces or engage in combatant acts while descending, must be provided an opportunity to surrender upon reaching the ground.

This is a more or less faithful reflection of the rules laid down in Article 42(1) and (2) of Protocol I. The inclusion of this provision in paragraph 11.7 may be taken as a sign that the United States regards the position of these persons as being governed by customary law.

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Article 41(2) provides that a person is hors de combat if: (a) he is in the power of an adverse Party; (b) he clearly expresses an intention to surrender; or (c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself; provided that in any of these cases he abstains from any hostile act and does not attempt to escape. While no treaty prior to Protocol I provides for the protection of persons descending from disabled aircraft, a rule to this effect was included in Art. 20 of the Rules of Air Warfare, drafted by a commission of jurists at The Hague, Dec. 1922-Feb. 1923, that convened at the instigation of the Washington Conference of 1922 on the Limitation of Armaments. See Schindler & Toman at p. 147 for text.

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Section 11.7 deviates from the language of Article 42, notably, in the reference to the performance of “combatant acts while descending”. At the Diplomatic Conference of 1974-1977, in the course of the debate on the draft Article, some urged that a clause to that effect be included, whereas others asserted that it would be an empty phrase as performance of such acts in the course of a descent by parachute was impossible. In the end, a Philippine amendment to add “unless he commits a hostile act during such descent” failed to obtain the required twothirds majority. While Article 42(3) provides, by way of exception, that “Airborne troops are not protected by this Article”, paragraph 11.7 also excludes from protection “special warfare infiltrators and intelligence agents”. This sounds reasonable enough. Yet it may not be easy in practice to ascertain that a person who is parachuting from an airplane that may or may not be in distress actually belongs to one of these sinister categories. 4.3

Prisoners of War

As provided in paragraph 11.8, Prisoners of War, “combatants that have surrendered or otherwise fallen into enemy hands are entitled to prisoner-of-war status.” Subparagraph 2 defines the persons entitled in principle to such status. They “include members of the regular armed forces, the militia and volunteer units fighting with the regular armed forces, and civilians accompanying the armed forces.” While the Handbook poses no further conditions for members of the regular armed forces, subparagraph 2 specifies in a second sentence: Militia, volunteers, guerrillas, and other partisans not fighting in association with the regular armed forces qualify for prisoner-of-war status upon capture, provided they are commanded by a person responsible for their conduct, are uniformed or bear a fixed distinctive sign recognizable at a distance, carry their arms openly and conduct their operations in accordance with the law of armed conflict.

This sentence provides a slightly simplified version of the traditional law, while at the same time supplementing it with embellishments and explanatory elements of its own. In doing so, it largely relies on the treaties to which the United States is a party. For the rest, it appears to borrow elements from Protocol I or, indeed, from its drafting history. The applicable pre-Protocol treaty law is found mainly in Article 13 common to the First and Second Geneva Conventions and in Article 4 of the Third 34

The amendment (CDDH/413), when put to the vote in the plenary meeting of 25 May 1977, obtained 29 votes in favour, 27 votes against and 34 abstentions. Official Records, Vol. VI, p. 106.

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Convention. As far as relevant here, these Articles list in identical terms, first, the members of regular armed forces, including “members of militias or volunteer corps forming part of such armed forces”, and secondly: Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war.

Like the quoted phrase in paragraph 11.8, these Articles distinguish between the regular armed forces and other armed groups, and specify a number of conditions the latter groups have to meet in order to qualify for prisoner-of-war status. The main difference is in the definition of the not-so-regular armed groups, with the treaty provisions specifically mentioning resistance movements, as a species of the genus “other volunteer corps”. That resistance movements were mentioned at all was a great victory in 1949, after the failure of the Hague Peace Conferences of 1899 and 1907 to resolve the problem of armed resistance in occupied territory in a satisfactory manner. At the same time, it was but half a victory, because the 1949 text maintained the four conditions as adopted in 1907 (including the element that the distinctive sign had to be “fixed” – a rather unfortunate German addition of that year to the text established in 1899). Even in 1949 it was a well-known fact that resistance movements are rarely able to meet all four conditions. It also became clear that even regular armed forces very often rely on cover and camouflage rather than, as in the days of yore, on the splendor and brilliance of their uniforms and arms. On the other hand, irregular fighters were often treated in practice as combatants and prisoners of war, even if they had not met all four conditions all the time. These facts eventually led to the adoption of Article 43(1) of Protocol I, providing a completely new definition of “armed forces”. The new text does away with the distinction between “regular” and “irregular” armed forces, as also with the list of stringent conditions of 1907. Instead, it requires organization, responsible command, and discipline. The obligation of combatants “engaged in an 35

Art. 43(1) reads as follows: The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government

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attack or in a military operation preparatory to an attack” to “distinguish themselves from the civilian population” is laid down in Article 44(3), leaving open how they will discharge this obligation. One obvious means remains the uniform. As specified in para. 7, Article 44 “is not intended to change” the practice of regular armed forces with respect to the wearing of the uniform – no matter what that practice may be. The definition of “armed forces” in Article 43(1) doubtless constitutes new law, and the United States is therefore legally entitled to disregard it. At the same time, one cannot but feel a sense of regret at this posture, which contradicts not only the stand taken by its delegation at the Diplomatic Conference of 1974-1977 but, perhaps even more strikingly, its own practice in the Vietnam War, a practice that served as an example to the rest of the world and was a source of inspiration for the negotiators at the Conference. In particular, after all that has happened, it is difficult to accept as serious propositions that a distinction should still be maintained between regular and other armed forces and that the latter would be required at all times to “be uniformed or bear a fixed distinctive sign recognizable at a distance” and “carry their arms openly.” Given the rather retrograde posture of the Handbook on the matter of qualification as prisoners of war, the reference in paragraph 11.8 to “guerrillas” and “partisans” is all the more surprising. Such catchwords may have been used in the debate preceding the adoption of Article 43(1) of Protocol I, but they were no more included in the text than other comparable, equally undefined terms, if only because they are as open to subjective interpretation as, for example, the word “terrorist”. The third and last subparagraph of paragraph 11.8 provides, in accordance with the rule in Article 5 of the Fourth Convention, that in case of doubt, a captive is entitled to “prisoner-of-war treatment until a competent tribunal convened by the captor determines the status to which that individual is properly entitled.” While the “competent tribunal” is expected to determine a person’s entitlement to prisoner-of-war status, it will usually have to do so on the basis of a finding concerning that person’s combatant status. In this respect, subparagraph 12.7.1, Illegal Combatants, is of interest. It provides that “[p]ersons who take part in combat operations without distinguishing themselves clearly from the civilian population during battle are illegal combatants and are subject to

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or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict. Art. 44(3) is among the most hotly contested provisions of Protocol I. See infra text accompanying note 38. Given the express reference in Section 11.8 to “guerrillas” and “partisans,” one would not have been surprised to find a reference as well to President Reagan’s preferred “freedom fighters”, better known as the Nicaraguan contras.

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punishment upon capture.” Then, referring to the above rule on determination of status, it asserts that if a competent tribunal finds them to be “illegal combatants”, they “may be denied prisoner-of-war status and be tried and punished for falsely claiming noncombatant status during combat.” This is followed by the somewhat reassuring conclusion that “[i]t is the policy of the United States, however, to accord illegal combatants prisoner-of-war status if they were carrying their arms openly at the time of capture.” All of this can hardly go without a few words in comment. While the closing part of the first sentence is doubtless correct, the assertion that such persons are “illegal combatants” is, to say the least, highly controversial. As the modern law stands, a person either is a member of the armed forces and, hence, a “combatant”, or he does not belong to an armed force and, hence, is a “civilian”. For this, it is immaterial whether the person in question, while engaged in combat activities, has distinguished himself from the civilian population. If he failed to do so, he is liable to be punished. In other words, the better view is that a category of “illegal combatants” simply does not exist. As regards the general rule of distinction, the “new law” of Article 44(3-4) of Protocol I admits one exception. It concerns the armed combatant who finds himself in a situation where, “owing to the nature of the hostilities” he cannot properly distinguish himself from the civilian population while “engaged in an attack or in a military operation preparatory to an attack.” If this person then fails to meet even the minimum requirement of carrying arms openly, “(a) during each military engagement and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate”, he forfeits “his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol.” This exception to the principle of distinction is among the points most strongly objected to by the United States. To some extent, the quoted phrases of subparagraph 12.7.1 reflect these objections, in that they disqualify as “illegal combatants” all those who take part in combat operations without proper distinction. At the same time, one senses a reluctant (or audacious?) attempt to meet the “new law” half-way in the closing sentence, where it is declared to be U.S. policy to accord prisoner-of-war status (not merely treatment) even to persons who have been found to be “illegal combatants” – this on the condition that they were carrying arms openly at the time of capture, rather than during the periods of activity and visibility indicated above. This is surprising, because the moment of capture may occur days after the aforesaid combat activities. Perhaps the sentence is intended to mean exactly the same as the rule in Article 44(4), the assumption being that capture will take place in the course of the combat activities.

38

See supra note 36.

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As for the treatment of prisoners of war, it may suffice to note that while this is dealt with in minute detail in the Fourth Convention, the Handbook obviously does not repeat all of this. Paragraph 11.8 states the principle that they “must be treated humanely and protected against violence, intimidation, insult, and public curiosity” as well as the main rules on interrogation, including the prohibition of “torture, threats, or other coercive acts.” After some basic facts about “trial and punishment”, “labor”, and “escape” (subparagraphs 11.8.1 to 11.8.3), subparagraph 11.3.4 lays down some sensible rules for the “Temporary Detention of Prisoners of War, Civilian Internees, and Other Detained Persons Aboard Naval Vessels.” None of this needs special comment. 4.4 War Correspondents and Other Persons Accompanying the Armed Forces While section III of this essay dealt with civilians as members of very broad categories (the entire civilian population, or large segments, such as inhabitants of occupied territory), a totally different approach consists in singling out specified classes of civilians for special protection. A case in point is the war correspondent, mentioned in paragraph 5.3 of the Handbook. He belongs, in the terms of Article 4A(4) of the Third Convention, to the persons “who accompany the armed forces without actually being members thereof.” As distinct from the information officer (who is a member of the armed forces), the war correspondent, although officially accredited with the armed forces, is a civilian and must in principle be treated as such. Yet his work exposes him to the risk of falling into enemy hands. Accordingly, it was provided in Article 13 of the Hague Regulations that in case this happened and if the enemy considered it “expedient to detain” war correspondents, they were “entitled to be treated as prisoners of war, provided they [were] in possession of a certificate from the military authorities of the army which they were accompanying.” Article 81 of the 1929 Prisoners-of-War Convention used more or less the same language. The most important innovation was that the requirement of a certificate had been replaced by a requirement of authorization from the same military authorities. Article 4A(4) of the Third Convention differs from the 1929 text in this one respect that the text no longer refers to the expediency of detaining the persons in question. This does not however materially affect the situation: they are and remain civilians and the enemy will still be fully entitled to let them go if he so prefers. The rule of Article 4A(4) applies not only to war correspondents but likewise to all “persons who accompany the armed forces without actually being members thereof.” The Article gives as further examples: “civilian members of military aircraft crews … supply contractors, members of labour units or of services responsible for the welfare of the armed forces.” As with the war correspondents, a condition for prisoner-of-war status of all these groups is “that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.” And

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once again, they all are and remain civilians, even though the enemy might think fit to detain them temporarily or, if he so prefers, for the duration of the armed conflict. In the Handbook, the second subparagraph of paragraph 11.8 refers in passing to the general category of “civilians accompanying the armed forces”. 4.5

Journalists on Dangerous Missions

In recent years, a great deal of attention has been given to the risks run by journalists who report on an ongoing armed conflict without being accredited as war correspondents with the armed forces of one of the parties. The result is Article 79 of Protocol I, on “measures of protection for journalists”. The Article aims to provide a modicum of protection to journalists who are “engaged in dangerous professional missions in areas of armed conflict.” Obviously, such journalists often put their lives at risk in their news-gathering activities. So long as they roam freely through an area of actual combat, the law can do little more than remind the belligerent Parties, as Article 79 does, that they are civilians and, as such, entitled to “general protection” (the Article states erroneously that they “shall be considered as” civilians). While, as explained above, an officially accredited war correspondent who is captured and detained by the enemy is entitled to treatment as a prisoner of war despite his status as a civilian, this rule does not apply to other journalists. Article 79 of Protocol I does not modify the situation; it merely makes clear that even in this eventuality, the “journalist engaged in a dangerous professional mission in an area of armed conflict” is and should be treated as a civilian. The “journalists on dangerous missions” have not found a place in the Handbook. 4.6

Crew Members of Merchant Marine and Civil Aircraft

By virtue of Article 4A(5) of the Third Convention, and for similar reasons as war correspondents, the “members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft” qualify as prisoners of war when detained by the enemy. This rule, although not mentioned in Chapter 11, is duly reflected in Chapter 8, Naval Targeting, notably in subparagraph 8.2.2.1. 4.7

Protective Signs and Symbols and other Means of Identification

Paragraph 11.10, Protective Signs and Symbols, sums up the main rules on use of protective means of identification. With respect to the use Israel makes of 39

With respect to the status and protection of journalists see ICRC, Commentary (supra note 28), pp. 917-24.

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the Red Star of David, instead of the Red Cross or Red Crescent as the two internationally accepted and commonly used symbols, subparagraph 11.10.1 states that the United States “has not agreed that it is a protective symbol.” While this is indubitably correct, perhaps even more important is that the other 160-odd States of the world equally, and quite emphatically, refuse to include it amongst the recognized protective symbols. A U.S. agreement to recognize the Red Star of David as such could not alter this fact or, with that, the state of the law. The paragraph provides a remarkably complete list of protective symbols. It includes, “for informational purposes only”, two symbols established by Protocol I: one for the protection of dams, dikes and nuclear power plants, and the other protecting civil defense facilities and personnel. Curiously, it also mentions, as “of special interest to naval officers”, the sign established by Hague Convention IX of 1907 and, according to the letter of Article 5, designed to be used by the inhabitants of towns, etc. open to naval bombardment, to “indicate … sacred edifices, buildings used for artistic, scientific or charitable purposes, historic monuments, hospitals, and places where the sick or wounded are collected.” The “visible signs” prescribed in Article 5 and consisting of “large, stiff rectangular panels divided into two colored triangular portions, the upper portion black, the lower portion white”, can hardly be regarded as well-known. They may even be said to have fallen into desuetude. In striking contrast to the express reference to these obsolete signs is the total silence on the rules concerning the distinctive marking of hospital ships. In effect, the only reference to these ships is in paragraph 8.2.3, where they are listed among the enemy vessels and aircraft exempt from capture or destruction.” This is all the more astounding as hospital ships are a common feature of naval warfare and as, both during and after the Diplomatic Conference of 1974-1977, much has been said and done about the improved identification of such vessels, also by other than visual means. 5

Conclusions

A good part of the commentary in the preceding sections deals with civilians and the civilian population, notably on land. This is not a consequence of a predilection on the part of the present commentator but, rather, of the organization and contents of Chapter 11, which puts these people in a frontline position – in more than one respect. It should be stated straightaway that, even though much of a commendable nature was found in the relevant parts of Chapter 11, its overall impression as regards the protection of the civilian population was not entirely satisfactory. 40

In Article 1012.1 of The Code of International Armed Conflict (1986), Vol. 2, p. 652, Howard S. Levie mentions the signs of the 1907 Hague (IX) Convention, but leaves no doubt that they are for all practical purposes obsolete.

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The most important point is perhaps a question of “turn of mind”. Civilians are not just “noncombatant persons”; they constitute a human society and, in the event of an international armed conflict, the enemy society. It is first and foremost in their societal existence that they must be respected and protected. It is a trite observation that in the practice of contemporary armed conflicts, members of the civilian population are far more likely to fall victim to unjustifiable acts of war than to justifiable ones. Military manuals should serve to curb this tendency rather than encourage it. More specifically, the present commentator ventures to suggest that the paragraphs dealing with the distinction between civilians and combatants and the fate of civilians taking a direct part in hostilities be rephrased and brought more in line with the humanitarian spirit of the modern law of war. The principle that the civilian population be spared as much as possible, now hidden in a corner of Chapter 8, should be given a more prominent place, preferably in Chapter 11. Always in the context of protection of the civilian population, the express claim of a right of reprisal is deeply regretted. It was stated at the outset of section II of this essay that the term “noncombatant” as used in the Handbook does not represent a simple notion at all. The discussion in sections III and IV may have made clear that the phrase is not just deceptively simple; it can hardly be regarded as adequate to cover the great variety of persons who at a given moment, and for one reason or another, are not actively engaged in the conduct of military operations. They range from the “innocent civilian” whose only hope is to remain unaffected by the hostilities, through the journalist who out of professional curiosity seeks out the danger areas, the military doctor who by profession and probably out of idealism will often have to confront the same types of danger, the wounded soldier who for the time being is incapacitated by his wounds, to the fighter pilot who has abandoned his disabled aircraft and parachutes to his own territory where he may hope soon to resume his combatant handiwork. This being the case, the question arises whether the treatment of all these widely different categories of persons in one chapter is really justified. The present commentator entertains serious doubts in this respect. Perhaps the point where these doubts become most poignant is with regard to paragraph 11.2, purporting to lay down a series of general principles applicable to all “noncombatant persons” without exception. Without going once again into the details of law relating to specified categories of persons, it may simply be stated here that unmodified application of the generalities of paragraph 11.2 to all of these categories may result in serious encroachments of the law. There remains the question of the scope of Chapter 11, and of Part II of the Handbook in general. As set forth in the second section of the present comments, Part 11 is apparently designed for global application, on land, at sea, and in the air. This raises the tremendous difficulty of condensing into fairly brief paragraphs a great mass of legal provisions of varying age. While one may admire in principle

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the manner in which the authors of the Handbook have performed this task, some surprising features remain to be noted. To this commentator, the most surprising aspect is the scant attention given in Part II to hospital ships. In our day and age, one would hardly expect an express reference to Article 28 of the Second Convention, providing that “[s]hould fighting occur on board a warship, the sick-bays shall be respected and spared as far as possible.” In contrast, the hospital ship is an extremely useful and important element in present-day naval operations, and it deserved a more prominent place in the Handbook.* In more general terms, a somewhat more extensive treatment of the rules relating to the wounded, sick, and shipwrecked would appear no exaggerated luxury in a “Commander’s Handbook on the Law of Naval Operations”. As the text stands, and with all due respect for the remarkable achievement it represents, it suffers from a certain imbalance between the commendable attention given to civilians and other “noncombatant persons” on land, and a decidedly less extensive and intensive attention to specific problems of protection of “noncombatant persons” at sea.

*

As explained subsequently, the silence on hospital ships has been a simple oversight.

Chapter 25 Enemy Merchant Vessels as Legitimate Military Objectives*

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Introduction

Professor Horace Robertson’s paper on “U.S. Policy on Targeting Enemy Merchant Shipping: Bridging the Gap between Conventional Law and State Practice” provides a most helpful analysis of the problems U.S. policy makers have to face in dealing with this particular aspect of warfare at sea. In discussing the most recent product of their efforts in this area, viz., the Commander’s Handbook (NWP-9, 1987) he has not spared the drafters his criticism, thus providing a fertile basis for today’s debate. In order to save time and paper, I may just state at the outset that I entirely agree with his critical remarks. The publication, in 1987, of the U.S. Commander’s Handbook was a welcome event. It was evidence that a major naval power was prepared to take a fresh look at the many aspects of the display and use of naval power, in situations both of peace and war. The United States is not the only one to show such a renewed interest: a similar tendency may be noted in several other countries. In particular where naval warfare is concerned, this development was long overdue: as Prof. Robertson rightly notes, the last effort at international law-making dates back to 1936, and both the 1974-1977 Diplomatic Conference and the UN Conference on the Law of the Sea had wisely avoided (or miserably failed, according to one’s preferences) to take up the subject, with the many delicate problems inherent in it. To some extent, the first-mentioned Conference may nonetheless have provided the source of inspiration for the recent efforts. With the adoption of the Additional Protocols, the gap between the thoroughly updated law of land warfare (including sea-land and air-land warfare) and the venerable, if not superannuated, law of war at sea had become so glaringly obvious that it could not be ignored any longer. At all events, the very text of the Commander’s Handbook betrays the efforts the drafters made to remain close to the language of Protocol I, the non-ratification by the United States notwithstanding. For another reason as well, the 1974-1977 Conference and its results may be relevant to the present discussions. I for one am firmly convinced that the law of *

Published earlier in Richard J. Grunawalt (ed.), 65 U.S. Naval War College International Law Studies (1993) pp. 356-363.

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warfare at sea, no matter how distinct from other areas of the law of war, does not exist in isolation. It is not just the text of a recent instrument like Protocol I that should be taken into account in any attempt at rewriting the law of naval warfare, but the motives behind the text as well. The recent Round Table on “The Military Objective and the Principle of Distinction in the Law of Naval Warfare”, held in November 1989 at Bochum, Federal Republic of Germany, had the benefit of an introductory report by Commander William Fenrick (Canada) covering the whole spectrum of targeting in naval warfare. The comments I presented on that occasion focused mainly on the criteria determining whether an (enemy or neutral) merchant ship may be regarded as a legitimate military objective and attacked as such. The text below stems in part from these sources. 2

Law and Practice

My first comment concerns the question of law in relation to practice. Prof. Robertson regards the interdiction of merchant shipping as an activity that “fits neatly with the general principles of war.” The first such “generally accepted” principle requires, in his definition, that “every military undertaking must have a clearly defined objective and all activity must contribute to that goal.” Applying this and other principles of war to the question at issue, “interdicting the enemy merchant supply effort can easily be seen to contribute to the general prosecution of a war effort.” At the same time, and in contrast with this military logic, Prof. Robertson states that “traditional law regards merchant ships as civilian objects and merchant seamen as civilians and thus not legitimate targets of direct attack” (p. 338). Further down, he concludes that the Commander’s Handbook “seems to accept the continued viability of the [1936] Protocol but assumes that, just as in World War II, the practices of states in future conflicts will be such as to make it inapplicable in most circumstances” (p. 353). Leaving for the moment on one side whether “traditional law” really regards merchant ships and their crews in the manner he describes (in terms strongly reminiscent of Protocol I), the point is that the rapporteur appears to accept a situation where State practice deviates so completely from the law that the latter is “inapplicable in most circumstances”, or in other words, has for all practical purposes become a dead letter. In this respect, it may be of interest to quote Commander Fenrick, who notes in his report (p. 37) that, It is not essential that international law, to be valid, should always be compatible with state practice. If, however, the law of naval warfare is to have an impact on the conduct of warfare, there should be a crude congruence between law and practice so that it is marginal, extreme conduct which is condemned, not activities which are routine operations of war.

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Repeating my earlier comment, this may sound plausible enough from a military point of view, and the second sentence may even be read to apply to customary international law in general, as, for obvious reasons, customary law tends to keep fairly close to practice. On the other hand, it may just be an instance of begging the question: over time, “routine operations of war” and the military thinking on which they rest may have come to deviate so completely from what can be tolerated even in war as an unavoidable encroachment on human values that a correction is urgently required. These remarks were originally made in a discussion about the status of neutral merchant shipping. They may be even more relevant in the present context of the targeting of enemy merchant shipping: as between opposing parties to the conflict, the possibility of non-protest in the face of conduct that cannot “be tolerated even in war as an unavoidable encroachment of human values” and, with that, of an ostensible acceptance of practice setting aside law, is all that much greater. Rather than accepting the gap between law and practice as unbridgeable, I would therefore favour a re-examination of the situation, with a view to determining whether perhaps not only the law but practice as well stands in need of some adjustment. 3

Principle of Distinction

With respect to Prof. Robertson’s quoted statement that “traditional law regards merchant ships as civilian objects and merchant seamen as civilians and thus not legitimate targets of direct attack”, I wonder whether this may not be an overstatement of the law as it stands, especially where enemy merchant ships are concerned. With Commander Fenrick in his report to the Bochum meeting, I find my point of departure in “[t]he principle of distinction [as] a fundamental aspect of the law of naval warfare.” Even though it is not “explicitly addressed in any treaty text applicable to naval warfare”, it is as implicit in the law of naval warfare as it is in all other parts of the law of war, as the basis for the protection of the civilian population and civilian objects. Resolution XXVIII of the XXth International Conference of the Red Cross (Vienna, 1965) reaffirmed it in no uncertain terms as one of the four “general principles of the Law of War” to be observed by “all Governments and other authorities responsible for action in armed conflicts.” The UN General Assembly subsequently lent it the weight of its authority when it unanimously adopted Resolution 2444 (XXIII) of 19 December 1968. No State has since denied the validity of the principle, nor is it suggested anywhere that as a principle of law it would apply only to certain theatres of war, to the exclusion of other ones. As reaffirmed in 1977, and paraphrasing Article 48 of Protocol I, it requires parties to the conflict to distinguish at all times between

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civilians and combatants and between civilian objects and military objectives, and to direct their operations only against combatants and military objectives. Another matter is the manner in which the principle is elaborated for the different theatres of war. It is fairly evident that the particular set of rules embodied in the 1977 Additional Protocols, with their strong focus on land operations and protection of individual persons, cannot simply be transplanted to the theatre of naval operations. 4 The High Seas: A Different Theatre of War? In the past, land and sea warfare may have been very different affairs in that land warfare was first and foremost a struggle for territory, whereas war at sea usually had strong economic warfare overtones. The distinction lost much of its edge, though, with the introduction of the submarine and the air arm. As for the latter, the possibility of attacks from the air on objects situated deep in the enemy hinterland henceforth allowed economic warfare to be conducted against the enemy’s land-based industrial capacity and infrastructure. Aerial attacks on ground targets are by definition destructive. Economic warfare at sea, on the other hand, does not necessarily entail the destruction of ships: other, less destructive and economically more profitable ways of dealing with ships are available, such as visit and search followed by capture as prize, rerouting, etc. The fact, however, that especially submarines in their attacks on targets at sea behaved much like the air arm did in its actions against targets on land, largely removed the distinction. In effect, the actions of submarines were not only destructive: they rapidly became indiscriminate as well. In this respect too, the air arm behaved little better, with their attacks on ground targets also becoming increasingly indiscriminate – intolerably so, in effect. When the law was finally brought up for revision, the international community was no longer prepared to tolerate this extreme behaviour as a militarily unavoidable encroachment of human values, and the practice was outlawed by the rules on the protection of the civilian population embodied in the 1977 Additional Protocols. It may be noted in passing that these rules have never been intended to outlaw all air-land operations: in conformity with the general principle of distinction, they basically permit all those attacks that are directed against a specific military objective, as defined in the Protocol. 5 The Merchant Ship as a Military Objective Any object may in given circumstances come to be regarded as a military objective, i.e., a legitimate object of attack. Whether this is the case depends on the characteristics of object and situation in correlation with the accepted definition of “military objective”. It should be noted that “acceptance”, in this context, cannot simply signify the views of one single State, no matter how powerful.

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What is meant is the definition as accepted by the international community; and acceptance can come about in the shape of express agreement to a treaty text (as in Protocol I) or by any other process in accordance with international law. These considerations apply without reserve to all theatres of war. Only when it comes to elaborating the principle into more detailed rules, account must be taken of relevant differences between the various theatres. For our purposes, the main feature distinguishing sea warfare from land operations may be that at sea, human beings are not primarily encountered as individuals (and then, specifically, as combatants or civilians) but as the crew or passengers on board a ship (i.e., an object). Hence, the first question to be answered is not so much the status of given persons but, rather, whether a ship constitutes a military objective and may be attacked as such. Here as in other areas of the law of armed conflict, the answer to this question depends on the characteristics of the situation set against the applicable definition of military objective. One thing is beyond doubt: in the context of naval warfare, the notion of military objective, no matter how defined, includes the warships and naval auxiliaries of the adverse party, as military objectives “by their nature” (as in Art. 52(2) of Protoco1 I). As the rapporteur notes (p. 339): “Warships are instruments of war and subject to attack and destruction without warning.” He goes on to state that according to traditional international law, “[m]erchant ships, even those sailing under the flag of the enemy, are considered as civilian objects and manned by civilian crews, and so long as they maintain their proper role, are subject only to seizure as prize and subsequent condemnation in prize courts of the capturing belligerent.” The italicized words already suggest that when it comes to an enemy merchant ship, the question of whether it constitutes a military objective has no straightforward answer. It may be noted in passing that the quoted phrase qualifies to some degree the rapporteur’s earlier statement that “traditional law regards merchant ships as civilian objects and merchant seamen as civilians and thus not legitimate targets of direct attack.” As with land warfare, two steps are required to determine the status of a merchant ship: its characteristics must be determined, and these must be set against the rule of international law defining the “military objective” in the context of naval warfare. Obviously, here one does not find the definition in a recent treaty or similar authoritative text. It must therefore be derived from other sources. Any number of characteristics may make a merchant ship a significant element in the conduct of the war: e.g., activities carried out on board (guns being fired, information being transmitted, etc.); the way it is sailing (under enemy convoy, or on a ram course with an investigating warship); the cargo it carries (troops, young people destined to enter the enemy armed forces, military supplies, raw materials indispensable for the production of weapons of war); or, indeed, the mere fact that it sails under enemy flag, or imports or exports merchandise (say, bales of cotton) in which the adverse party has some financial interest, so that the ship may be deemed to contribute to the enemy war effort. However, whether

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any such factor also turns the merchant ship into a military objective depends, once again, on the definition of “military objective” as applicable in the context of naval warfare. 6 “Contribution to the War Effort” Not Sufficient Ground In this search for the applicable definition, the most important point to my mind concerns the claim that the mere fact that a merchant ship may be said to make a contribution to the war effort is sufficient to turn it into a military objective: a claim that is made nowhere with such insistence as in the Commander’s Handbook. This brings us back to Prof. Robertson’s introductory chapter, where he states (on p. 338) that “[i]f it is true that merchant shipping can be critical to a nation’s ability to prosecute a war effort, it is equally true that the opposing power will seek to interdict that supply effort.” Yes, but by what means? And specifically, by sinking all ships that are suspected of contributing to the enemy war effort? Commander Fenrick in his report to the Bochum Round Table examines four recent manuals. Neither the Australian nor the French manuals list contribution to the war effort as a separate criterion. The Canadian draft manual does use the term, but only with respect to enemy merchant ships and as part of the requirement that they are “incorporated into the belligerent war effort” (italics added). Whether or not enemy merchant shipping is deemed to be so incorporated will be decided at the governmental level. The list of “indicators that all enemy merchant shipping is incorporated into the belligerent war effort” shows clearly that the Canadian draft manual envisages a situation where the enemy completely and effectively controls all merchant shipping under its flag. The first indicator mentioned requires “state control over merchant shipping to ensure that only items essential to the war effort are imported or exported.” The fourth manual, the Commander’s Handbook, appears to be the most permissive in that (except for one further condition to be mentioned below) it merely requires integration of the enemy merchant ship into “the enemy’s war fighting/war sustaining effort” – an ostensibly somewhat more refined, but essentially more elaborate way of saying “war effort”. Prof. Robertson notes that this (seventh) condition did not figure in the previous U.S. naval manual, and that it: was added, according to the Annotated Supplement, to cope with the deficiency in condition six, perceived by Professor Mallison, that a possible interpretation of this paragraph might prohibit destruction of an enemy merchant ship carrying cargo of substantial military importance but is not a “military or naval auxiliary” because it is not owned or under the exclusive control of the armed forces.

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It is worth noting that “contribution to the war effort” does not constitute an element peculiar to the present deliberations about naval warfare: it was likewise of major importance in the recent discussions about war on land and from the air. It is, in effect, an age-old problem, witness the cotton bales of the American Civil War. And the assertion, for instance, that “interdicting the enemy industrial or agricultural output, or eliminating the enemy labour force, can easily be seen to contribute to the general prosecution of a war effort” sounds as reasonable as Prof. Robertson’s earlier quoted comment on “interdicting the enemy merchant supply effort.” It was in particular the increased recourse to aerial bombardment of industrial and other targets in the enemy hinterland that made the question of the role of the civilian population as a contributor to the “war effort” acute. In this regard, it may be recalled that in 1969, at the very first meeting of experts organized by the ICRC after the adoption of UN General Assembly Resolution 2444, the experts generally [agreed that] persons not taking a direct part in hostilities, even if they were indirectly contributing to the war effort, could not be attacked as quasi combatants. As an expert rightly pointed out, this would open the door to every abuse and would take any sense from the prohibition formulated in Resolution 2444 … But if civilians are on the site of a military objective or in its immediate proximity, they expose themselves to the particular risks resulting from an attack directed against that objective. (Reaffirmation and Development of the Laws and Customs Applicable in Armed Conflicts, report submitted by the ICRC to the XXIst Int. Conf. of the Red Cross, Istanbul, Sept. 1969; Geneva: May 1969, p. 69).

In the framework of land and air-land warfare these views have since been vindicated with the adoption of the rules in Protocol I elaborating the distinction between civilians and combatants, and civilian objects and military objectives, and the protection of the former. It is submitted that in naval warfare too, “contribution to the war effort” is too broad and vague a notion to serve as a determinant for the decision that even an enemy merchant ship may be attacked as a military objective. I regard it as a significant fact that of the four recent manuals Commander Fenrick quotes in his report, two do not include contribution to the war effort as a separate criterion. As for the Canadian manual, I would accept the quoted first indicator with two slight changes: delete the reference to export, and substitute “items essential to the war effort” with “items necessary for the military effort.” The Commander’s Handbook adds to the “war effort” criterion the further requirement that “compliance with the rules of the 1936 London Protocol would, under the circumstances of specific encounter, subject the surface warship [the submarine] to imminent danger or would otherwise preclude mission accomplishment.” In my submission, this amounts to hardly any restriction at all but

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rather encourages giving prevalence to the security of the attacking ship and mission accomplishment over humanitarian considerations. Arguments such as the security of a party’s forces or “mission accomplishment” appear to have become popular as recent, very vague and very broad versions of the age-old argument of military necessity. As such, they are valid considerations as long as they are thrown into the balance with the other values involved; not when they are simply used as an argument overriding all other considerations. They should not, in other words, degenerate into a “license to kill”.

Chapter 26 “Enemy Combatants” in American Hands: Are There Limits to the President’s Discretion?*

The “war on terror”, declared by President George W. Bush in immediate reaction to the horrendous terrorist attacks of 11 September 2001 on the World Trade Center and the Pentagon, has led to a great many and, at times, surprising actions. One particularly striking feature, and the subject of this essay, is the manner in which the United States is dealing with the several hundred people that fell into its hands during the course of Operation Enduring Freedom against Al Quaeda and Taliban forces in Afghanistan, or as a result of separate intelligence activities outside that theatre. Most of these people were shipped to the US naval base at Guantánamo Bay in Cuba, where they were placed in detention. Others are being detained in military facilities on US territory. At the time of writing, none of them have been granted prisoner of war status, nor has their status been determined by a “competent tribunal” in accordance with Article 5 of the Geneva Convention relative to the Treatment of Prisoners of War of 1949 (Third Geneva Convention). On the contrary, the US position is that, for one reason or another, they are all “unlawful combatants”, a qualification subsequently simplified to “enemy combatants”. The latter leaves the question of their (un)lawfulness open, but apparently allows them to be detained for as long as it pleases the authorities, or indeed as long as the war on terror lasts – an absurd perspective in light of the indeterminate nature of the world-wide “war on terror”. It is not the purpose of this essay to make yet another contribution to the debate on the status of the above-mentioned detainees, but rather to look at some attempts to influence their actual situation by legal means. This involves questions of national and international human rights law and, obviously, IHL (also known as the law of armed conflict). To be specific, this essay discusses the attempt by the Inter-American Commission on Human Rights (hereinafter, the IACHR or the Commission) to force the hand of the US Government by means of a request for precautionary measures, as well as two habeas corpus cases brought before US federal courts concerning all or some of the Guantánamo detainees.

*

Published earlier in Lijnzaad, Van Sambeek, Tahzib-Lie (eds.), Making the Voice of Humanity Heard (2003) pp. 271-289.

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Chapter 26 1 The IACHR’s Request for Precautionary Measures

On 25 February 2002, the Center for Constitutional Rights and the Human Rights Clinic at Columbia Law School in New York, together with the Center for Justice and International Law and various lawyers in Washington, DC, addressed a petition to the IACHR, requesting the Commission to issue precautionary measures that would guarantee each detainee’s rights and liberties under existing law. The IACHR has existed since 1960. In 1967, it was incorporated into the Charter of the Organisation of American States (OAS) as one of the Organisation’s main organs, charged with promoting the observance and protection of human rights, which, at the time, were set forth in the American Declaration on the Rights and Duties of Man), and acting as its consultative organ on these matters. When the American Convention on Human Rights was adopted in 1969, the Commission was again recognised, this time as one of the two organs competent “with respect to matters relating to the fulfilment of the commitments made by the States Parties to this Convention.” The fact that the IACHR does not owe its existence to the American Convention needs to be emphasised. Already in 1965, an Inter-American Conference had broadened its functions and powers, authorising it “to examine communications submitted to it and any other available information, to address to the government of any American State a request for information deemed pertinent by the Commission, and to make recommendations, when it deems this appropriate, with the objective of bringing about more effective observance of fundamental human rights.” This competence of the IACHR to deal with individual petitions – based at the time on the American Declaration of Human Rights – and to make recommendations to Member States, whether or not in

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The IACHR was established by resolution of the Fifth Meeting of Consultation of Ministers of Foreign Affairs (Santiago, Chile, 1959). The OAS Council approved the Commission’s Statute on 25 May 1960 and elected its first members on 29 June 1960. For an historical overview of developments concerning the IACHR and related OAS organs, see IACHR, Basic Documents – Introduction, available on its website at: . Art. 106(1) of the Charter. The American Declaration of the Rights and Duties of Man was adopted in early 1948, together with the OAS Charter, by the Ninth International Conference of American States (Bogotá, Colombia). Adopted 21 Nov. 1969 by the Inter-American Specialised Conference on Human Rights (San José, Costa Rica). The other organ is the Inter-American Court of Human Rights. The two organs are mentioned in Art. 33. Resolution of the Second Special Inter-American Conference, held in Rio de Janeiro, Brazil in Nov. 1965.

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relation to those petitions, did not disappear with the entry into force of the Convention. As a treaty, the Convention binds only the States Parties; yet it is remarkably ambiguous when it comes to the Commission. This body “shall represent all the member countries” of the OAS, its members are elected by the General Assembly of the OAS from “a list of candidates proposed by the governments of the Member States” (non-States Parties are thus not excluded: the United States has always had a member on the Commission), its main function is “to promote respect for and defence of human rights” and, in this context, “to develop an awareness of human rights among the peoples of America,” and so on. Other provisions deal specifically with its functions and powers in relation to States Parties, notably, those defining the Commission’s competences and procedures in relation to petitions under the Convention (as opposed to those under the Declaration). As the United States is not a party to the Convention, the petition of the Center for Constitutional Rights and other parties was brought under the Declaration. The petitioners evidently were not just asking for information: they also requested the Commission to issue precautionary measures aimed at forcing the US Government to grant the detainees all the rights it was clearly determined to withhold from them. They also urged the Commission “to find that any order of precautionary measures is binding on the United States,” an argument for which they sought reliance in the judgement of the International Court of Justice in the LaGrand case. 6 7 8

9

Arts. 35, 36 and 41 of the Convention. Arts. 44-51 of the Convention. The petitioners’ list included the following three issues: 1) measures to protect the right to personal integrity and fair trial of the detainees at Guantánamo ; 2) treatment of each detainee as a POW “until any doubt regarding such status is determined by a competent tribunal pursuant to Article 5 of Geneva III, as mandated by pre-existing law, including international humanitarian law;” and 3) affording each detainee “the right and liberties guaranteed by the [American Declaration of the Rights and Duties of Man] as mandated by pre-existing law, including international humanitarian law.” This was followed by a long list of guarantees. Information concerning the petition and the subsequent documents relating to the IACHR’s request for precautionary measures was found on the website of the Center for Constitutional Rights at: . LaGrand Case (Germany v. United States), 2001 ICJ p. 104, ( Judgment). Winding up a long argument about the interpretation of Art. 41 of the Court’s Statute “read in [its] context and in the light of the object and purpose of the Statute”, para. 109 contains the Court’s conclusion “that orders on provisional measures under Article 41 have binding effect.” On the basis of this conclusion, the Court found “that, by failing to take all measures at its disposal to ensure that Walter LaGrand was not executed pending the final decision of the International Court of Justice in the case, the United States of America breached the obligation incumbent upon it under the

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On 12 March 2002, the Commission informed the US Government that, after careful consideration, it had “decided during its 114th regular period of sessions to adopt precautionary measures, according to which we ask Your Excellency’s government to take the urgent measures necessary to have the legal status of the detainees at Guantánamo Bay determined by a competent tribunal.” Given “the significance and implications of this request to and for the United States and the detainees concerned,” the Commission went on “to articulate the basis upon which it reached this decision.” For its powers regarding precautionary measures it referred, first of all, to Article 25(1) of its Rules of Procedure: In serious and urgent cases, and whenever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent irreparable harm to persons.

The Commission noted that the adoption of precautionary measures is, as with the practice of other international decisional bodies, a well-established and necessary component of the Commission’s processes. Indeed, where such measures are considered essential to preserving the Commission’s very mandate under the OAS Charter, the Commission has ruled that OAS Member States are subject to an international legal obligation to comply with a request for such measures.

Rather than relying, as the petitioners had done, on the decision of the ICJ in the LaGrand case, the Commission evidently felt safer invoking its own earlier decision. It was right to do so, as there is a considerable gap between the power of the Court “to indicate … any provisional measures which ought to be taken [by one or more of the parties to the dispute] to preserve the respective rights of either party” and the permission granted the Commission to request States to adopt precautionary measures. The Commission’s ruling that OAS Member States “are subject to an international legal obligation to comply” with such requests has little more than moral force. The Commission also referred to Article 106 of the OAS Charter and Articles 18 to 20 of its Statute, which charge it with “supervising Member States’ observance of human rights in the Hemisphere” including “those prescribed under the American Declaration of the Rights and Duties of Man, which constitutes a source of legal obligation for all OAS Member States in respect of

Order indicating provisional measures issued by the Court on 3 March 1999” (para. 128(5)). The decision was taken by a vote of thirteen in favour and two against.

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persons subject to their authority and control.” Recognizing that “its specific mandate is to secure the observance of international human rights protections in the Hemisphere”, the Commission noted that in the past, it had also “looked to and applied definitional standards and relevant rules of international humanitarian law in interpreting the American Declaration and other Inter-American human rights instruments in situations of armed conflict.” After further developing these themes, the Commission concluded as follows: In light of the foregoing considerations, and without prejudging the possible application of international humanitarian law to the detainees at Guantánamo Bay, the Commission considers that precautionary measures are both appropriate and necessary in the present circumstances, in order to ensure that the legal status of each of the detainees is clarified and that they are afforded the legal protections commensurate with the status that they are found to possess, which may in no case fall below the minimum standards of non-derogable rights. On this basis, the Commission hereby requests that the United States take the urgent measures necessary to have the legal status of the detainees at Guantánamo Bay determined by a competent tribunal.

It did not take the Government long to respond to the IACHR’s request. In a letter dated 12 March 2002, it rejected all of the Commission’s arguments. The introduction summarizes the Government’s position: The United States respectfully submits that the Commission has acted without basis in fact or law in requesting precautionary measures in this case. Specifically, the United States contends that (1) the Commission does not have the requisite jurisdictional competence to apply international humanitarian law, including the 1949 Geneva Convention on prisoners of war (“Geneva Convention”), as well as customary international humanitarian law; (2) even if it did possess the requisite jurisdictional competence, precautionary measures in this case are neither necessary nor appropriate; and (3) the Commission does 10

In Inter-American Commission on Human Rights, Basic Documents – Introduction, op. cit. note 1, the Commission cites the following sources supporting the binding force of the American Declaration: Inter-American Court of Human Rights, Advisory Opinion OC-10/89, Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, Ser. A. No. 10 (1989), paras. 35-45; IACHR, James Terry Roach and Jay Pinkerton v. United States, Case 9647, Res. 3/87, Annual Report 1986-1987, paras. 46-49; and Rafael Ferrer-Mazorra, et al., v. United States, Rep. 51/01, Case 9903. Interestingly, the only provision in the Commission’s Statute on provisional measures is Art. 19(c), which allows the Commission “to request the Inter-American Court of Human Rights to take such provisional measures as it considers appropriate in serious and urgent cases which have not yet been submitted to it for consideration, whenever this becomes necessary to prevent irreparable injury to persons.”

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Chapter 26 not have authority over non-States Parties to the American Convention on Human Rights to request precautionary measures, as it has done in this case. For these reasons, the United States respectfully asks the Commission to rescind its request for precautionary measures. The Commission should, nonetheless, be aware that the detainees are being treated humanely and consistent with the principles of the Geneva Convention.

To demonstrate the IACHR’s lack of “requisite jurisdictional competence to apply international humanitarian law” the US Government began by explaining what competence it positively attributed to the Commission: Chapter VII of the American Convention “establishes” its “organization, functions and procedures” and mandates the Commission to “prepare its Statute”, which “was submitted to the OAS General Assembly for its approval” in 1979. (Here the Government conveniently overlooked the fact that as mentioned above, the Commission’s first approved Statute dates back to 1960 and the expansion of its powers to 1965.) The Government then digested the detailed provisions of Article 20(b) of the Statute concerning the Commission’s competence with respect to non-States Parties, including authority “to address the government [of any such State] for information … and to make recommendations to it … in order to bring about more effective observance of fundamental human rights.” Without bothering to discuss the possible scope of these provisions, the Government simply concluded as follows: “As the Commission is well aware, it is the longstanding position of the United States that the Commission’s competence with respect to the United States extends only to offering guidance on the American Declaration.” For the negative side of its argument, the Government relied on a judgement of the Inter-American Court of Human Rights. The Las Palmeras case concerned preliminary objections raised by Colombia, inter alia, against the fact that the Commission had not merely referred to certain rules of IHL as a means to interpret provisions of the American Convention, but had directly applied those rules against Colombia. Almost as an afterthought, Colombia had added that the Court also lacked competence to apply IHL. Turning matters around, the Court first concluded that it did indeed lack such competence, and then stated (without further argument) that the same applied to the Commission. The conse11 12

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Footnotes omitted. Las Palmeras Case, Preliminary Objections, Judgement No. 67, 4 Feb. 2000. See F. Kalshoven, “State Sovereignty versus International Concern in Some Recent Cases of the Inter-American Court of Human Rights”, in G. Kreijen et al. (eds.), State, Sovereignty, and International Governance (2002) pp. 259-280. The second objection was that the Inter-American Commission on Human Rights was “not competent to apply international humanitarian law and other international treaties,” and the third, that the Inter-American Court of Human Rights was “not competent to apply international humanitarian law and other international treaties.”

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quence of this construction was that the scope of the Court’s judgement was limited to the competence of the Commission in a contentious case (which may end up at the Court) and therefore, by definition, under the American Convention, and so had nothing to do with the broad powers of the Commission under the OAS Charter and the American Declaration. While thus flawed from the outset, the argument of the US Government further stated that the decision of the Commission amounts to an application of IHL. As the Government wrote: … the Commission’s request for precautionary measures and the precautionary measures themselves are not premised on any rights set forth in the American Declaration. This case is not about the American Declaration. Rather this case is about the detention of captured enemy combatants who took part in hostilities during an armed conflict – an armed conflict that continues at this time. It involves solely the interpretation and application of specific articles of the Geneva Convention and related customary international humanitarian law, neither of which lies within the scope of the Commission’s competence. In order to request provisional measures in this case, the Commission necessarily has had to interpret and apply humanitarian law, specifically Article 5 and other provisions of the Geneva Convention – a body of law separate and distinct from the American Declaration and the body of human rights law.

This statement may be factually correct, but the question is whether what the IACHR had done amounted to a direct application of humanitarian law. The US Government noted that in order to achieve the desired result, the Commission “had to interpret and apply humanitarian law.” The IACHR itself also argued that in the past, it had “looked to and applied definitional standards and relevant rules of international humanitarian law in interpreting the American Declaration … in situations of armed conflict” [emphasis added]. The difference between the approaches of the two bodies was therefore that while the Commission, in accordance with its long-standing practice, looks to the adjacent and partially overlapping body of international humanitarian law for guidance regarding the interpretation of the applicable human rights law (such as the prohibitions on wanton killing and arbitrary detention) in situations of internal or international armed conflict, the Government regarded this body of law as lex specialis that is strictly separated from human rights law. To revert to the Government’s argument, “this case is about the detention of captured enemy combatants … It involves solely the 14

This is evident from the following consideration of the Court: “Although the InterAmerican Commission has broad faculties as an organ for the promotion and protection of human rights, it can clearly be inferred from the American Convention that the procedure initiated in contentious cases before the Commission, which culminates in an application before the Court, should refer specifically to rights protected by that Convention.” Judgement, supra note 12, para. 34.

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interpretation and application of … international humanitarian law” [emphasis added]. The most one can say for the Government’s line of argument is that it is rather antiquated. Half a century ago, while Jean Pictet, a top lawyer of the ICRC, may have defended the separate existence of the two bodies of law for fear of contaminating IHL with the pernicious political influences at work in the sphere of human rights law, some of his colleagues, with Claude Pilloud at the forefront, were already cooperating actively with Sean McBride, then Secretary-General of the International Commission of Jurists, which was geographically not that far removed from the Committee’s headquarters in Geneva. A simple comparison of the Universal Declaration of Human Rights of 1948 and Common Article 3 of the Geneva Conventions of 1949 is sufficient to prove the point. Since those early days, the awareness has grown that there is much that binds the two bodies of law together in the substantive field. It has also become obvious that, in matters of compliance, human rights organs can contribute a great deal to the enforcement of international human law. In effect, the IACHR is an early and outstanding example of such cooperation. To the US Government, however, to pass from human rights law to IHL is like crossing the Rubicon – a simple river – and that for a State that has conquered space! The second key argument of the US Government, as noted above, was that “precautionary measures in this case are neither necessary nor appropriate.” On this point, a few words suffice. According to the Government, the status of the detainees had been authoritatively determined and they were being treated well. In other words, there was no “immediate risk of irreparable harm,” the prerequisite for precautionary measures. This clearly constitutes a very different appreciation of the situation. With its third and last argument, namely, that the IACHR lacked authority over non-States Parties to the American Convention to request precautionary measures, the US Government actually reverted to the point it had made at the beginning of its letter. The Commission does have a certain competence vis-àvis non-States Parties to the Convention, but this is strictly limited to making recommendations. The actual situation is as follows. In its Rules of Procedure, which are of the IACHR’s own making, the first chapter of Title II (Procedure) contains “general provisions” and the second matters relating to the American Convention. In the first chapter of Title II, Article 25 makes provision for precautionary measures: 15

A third line of argument of the Government is that the IACHR “has failed to follow the methodology set forth by the International Court of Justice for ascertaining the applicable legal norms in cases that involve international humanitarian law.” Leaning heavily on the Court’s Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports (1996) p. 226, the argument is too specious to repeat here.

“Enemy Combatants” in American Hands: Limits to the President’s Discretion? 1.

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In serious and urgent cases, and whenever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent irreparable harm to persons. … The granting of such measures and their adoption by the State shall not constitute a prejudgment on the merits of a case.

Evidently, in the perception of the IACHR, the ability to request a State to adopt precautionary measures applies to States Parties and non-States Parties alike. However, this language does not appear in its Statute, which, as noted earlier, has been accepted by the General Assembly of the OAS. One provision, Article 19(c), refers to “provisional measures”, but only in the context of a possibility for the Commission “to request the Inter-American Court of Human Rights to take” such measures in relation to States Parties. With respect to non-States Parties, two provisions apply: Article 18(b) on the general capacity of the IACHR, which entitles it to make recommendations to the governments of the states on the adoption of progressive measures in favour of human rights in the framework of their legislation, constitutional provisions and international commitments, as well as appropriate measures to further observance of those rights

and Article 20(b) in relation to non-States Parties, which entitles the Commission to examine communications submitted to it and any other available information, to address the government of any Member state not a Party to the Convention for information deemed pertinent by this Commission, and to make recommendations to it, when it finds this appropriate, in order to bring about more effective observance of fundamental human rights.

Once again, this language is a good deal more stringent than the meagre conclusion of the US Government that the competence of the Commission in relation to the United States had always been and continued to be restricted to “offering guidance on the American Declaration.” It is a matter of interpretation whether in extreme circumstances, when urgent measures are required, a recommendation made “in order to bring about more effective observance of fundamental human rights” may involve a request to a government to take precautionary measures. I for one would have no great difficulty in accepting this interpretation, but my acceptance thereof is obviously academic. Unfortunately, however, so is that of the Commission. As the United States is not a party to the Convention, let alone

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to the Inter-American Court of Human Rights, there is no forum that could induce a change in its views on the competences of the IACHR. The Government’s response did not bring this case to an end. There first followed a twenty-seven-page document of 13 May 2002 containing the “observations” of the petitioners. The document concluded with a request, not just for a reaffirmation of the earlier decision of the IACHR, but for a series of “additional measures necessary to protect the right to personal integrity and fair trial of the detainees,” whose number had by then increased to some 600 persons. Then, in response to a request for information made by the IACHR on 28 May 2002, the Government issued a thirty-two-page document on 15 July 2002 that reiterated its earlier position in every respect. It is interesting to note the way in which the Government addressed the issue of the overlap between IHL and human rights law on this occasion. The Government argued as follows. Put simply, the Commission’s jurisdiction does not include the application of the law of armed conflict, the lex specialis governing the status and treatment of persons detained during armed conflict. To be sure, many of the principles of humane treatment found in the law of armed conflict find similar expression in human rights law. And some of the principles of the law of armed conflict may be explicated by analogy or by reference to human rights principles. Yet the Petitioners confuse an overlap of principles with an overlap of jurisdiction. 16

The petitioners provided the following impressive list of additional measures: 1. With respect to all non-combatants arrested, including but not limited to those arrested in Bosnia and Pakistan, afford them the full range of rights afforded to civilian detainees facing criminal indictment and prosecution and bring them immediately before a civilian criminal court. 2. Treat all other detainees as POWs until such time as a competent tribunal is convened and their legal status definitively determined, as mandated under preexisting law, including international humanitarian law. 3. Afford each detainee the rights and liberties guaranteed by the American Declaration, including the following: 1. Notification in writing of charges faced (if any); 2. Access to legal counsel and confidentiality of attorney/client communications; 3. Access to judicial review of any determinations made that affect their status and rights. 4. Identify all detainees by name, nationality and address, where known 5. Notify all detainees of their rights under Article 36 of the Vienna Convention on Consular Relations, and grant them access to consular representatives, should they request it. 6. Suspend interrogations of detainees until their status and rights have been finally determined. 7. Stay any proceedings before military commissions pending resolution of the prisoner’s status.

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To say that both human rights law and law of armed conflict draw on similar principles of treatment is not to say that bodies with jurisdiction over the one law have jurisdiction over the other.

With all due respect, this is a perfect example of the classical Pictet thesis. It can hardly be maintained that it is still relevant today. It is extremely disappointing that a leading country such as the United States has taken such a retrograde position on a matter of such vital importance for the implementation and enforcement of IHL. According to the latest information available to me, the Commission sent yet another communication to the US Government on 23 July 2002, which ended with a reiteration of its request to the Government to take the precautionary measures it had originally requested. It cannot be expected that this will lead to a change in the situation. The relations between the Commission and the US Government thus remain deadlocked. 2 The Two Guantánamo Bay Habeas Cases 2.1

Coalition of Clergy, Lawyers & Professors v. Bush

After the complexities of the clash between the IACHR and the US Government over the issue of precautionary measures to protect the rights of the Guantánamo Bay detainees, the Coalition of Clergy, Lawyers & Professors v. Bush case appears refreshingly simple. On 20 January 2002, on behalf of all the detainees, the Coalition addressed a petition for a writ of habeas corpus to the US District Court for the Central District of California. The petition alleged that the detainees have been deprived of their liberty without due process of law, have not been informed of the nature and cause of the accusations against them or afforded the assistance of counsel, and are being held by the United States government in violation of the United States Constitution and the Third Geneva Convention.

Just one month later, on 21 February 2002, the Court dismissed the petition on the grounds that the Coalition lacked standing to bring a habeas petition on

17

The American member of the IACHR, Prof. Robert K. Goldman of the Washington School of Law, American University, Washington, D.C., who is a prolific contributor to the development of IHL in its relations with human rights law, is scheduled to step down from his position on the Commission this year. It is rumoured that the US Government is planning to have him replaced by a lawyer whose expertise lies in fields not connected to IHL or human rights law.

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behalf of the detainees, and that neither this nor any other US federal court could have jurisdiction over the writ. The writ of habeas corpus is a powerful tool in the hands of the US federal court system to check certain unlawful acts of the authorities, such as arbitrary detention and other deprivations of constitutional rights. At the same time, the actual wielding of the tool is bound by statute law. On the issue of standing, the law provides that an application for a writ may be made “by the person for whose relief it is intended or by someone acting in his behalf.” On the issue of jurisdiction, it provides that the power to grant a writ lies with “the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.” If the person for whom relief is sought is a prisoner, a writ can only be granted if he “is in custody under or by colour of the authority of the United States.” In the case of the Guantánamo Bay detainees, the last condition was undoubtedly fulfilled. Convinced that they were not in a position to apply for the writ in person, the Coalition submitted the petition as a kind of self-appointed agent acting on their behalf or, in the relevant legal terms, as the “next friend” of the detainees. It was the District Court’s reading of the concept of “next friend”, as well as its views on the matter of jurisdiction, that led to its negative decision in the case. Not surprisingly, the Coalition appealed, bringing the case before the US Court of Appeals for the Ninth Circuit. For the Court of Appeals, the crux of the matter was standing. Logically, the first question was whether the detainees were really precluded from bringing their own application. The Coalition had advanced “that the detainees ‘appear to be held incommunicado,’ and thus are physically blocked from the courts.” The Court disagreed: “The record shows that the detainees have been visited by members of the International Red Cross [actually delegates of the ICRC] and diplomats from their home countries, and have had limited opportunities to write to friends and family members.” However, as “stated by the district court, and conceded by the Government at argument, ‘from a practical point of view the detainees cannot be said to have unimpeded or free access to court’.” The Court left it at that and saw no need “to delineate the contours of the access requirement in these circumstances … in light of the Coalition’s lack of a relationship with the detainees.” This perception of the Court of Appeals was followed by a discussion of the question whether “the members of the Coalition have some significant relation18 19 20 21 22 23

Coalition of Clergy v. Bush, 189 F. Supp. 2d 1036, 1039 (C.D. Cal. 2002). 28 U.S.C. § 2242. 28 U.S.C. § 2241. Ibid. Coalition of Clergy, Lawyers & Law Professors v. Bush, 310 F.3d 1153 (9th Cir. 2002). Ibid., [3] and [4].

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ship with, and are truly dedicated to the best interests of, the detainees.” The Court based these two requirements on an opinion handed down by the Supreme Court in 1990, in which it demanded two things of “next friends”. First, they must adequately explain “why the real party in action cannot appear on his own behalf to prosecute the action” (i.e., the matter discussed above). “Second, the ‘next friend’ must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate, and it has been further suggested that a ‘next friend’ must have some significant relationship with the real party interested.”  Over the protests of the Coalition, the Court of Appeals selected the abovementioned “further suggestion” of the Supreme Court as its first criterion on the “next friend” question and rapidly arrived at the conclusion that, even though “the contours of the requisite ‘significant relationship’ do not remain static, but must necessarily adapt to the circumstances facing each individual detainee,” in this case “the Coalition has not demonstrated any relationship with the detainees.” That being the case, and in spite of its sympathy for the Coalition’s “genuine and sincere” concern for “the rights and welfare of the detainees”, the Court concluded that the Coalition lacked next-friend standing. At best, “the Coalition can only assert ‘a generalized interest in constitutional governance’.” This phrase, copied from the Supreme Court opinion, “is insufficient to support next-friend standing.” As noted, the District Court also based its decision on a lack of jurisdiction. The Court of Appeals, having found that the Coalition lacked standing, declined to enter into the question of jurisdiction. By way of conclusion, it affirmed the District Court’s order regarding the lack of standing, but vacated the Court’s “determination that there was no jurisdiction in the Central District of California and its far-reaching ruling that there is no United States court that may contain any of the habeas claims of any of the detainees.” Indeed, it was not for the District Court “to hold that the constitutionally embedded right of habeas corpus was suspended for all Guantánamo Bay detainees, without regard for their particular circumstances, whether they petitioned individually or through a true next friend on their behalf.” Disappointed yet unwilling to admit defeat, the Coalition sought to bring the case before the Supreme Court. The attempt failed. By its decision of 19 May

24 25

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Whitmore v. Arkansas, 495 U.S. p. 149, at p. 164 (1990). Court of Appeals [Coalition of Clergy, Lawyers & Law Professors], loc. cit. note 18, at [5]-[7]. Judge Marsha S. Berzon, concurring, rejects as ill-founded the Court’s manipulation of the “further suggestion” of the Supreme Court. Ibid., [8]; Whitmore, loc. cit. note 24. Decision of 18 November 2002.

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2003, this august Court denied the writ of certiorari, thus bringing the first habeas case on the Guantánamo Bay detainees to its final, negative conclusion. 2.2

Al Odah v. United States

While the Appeals Court for the Ninth Circuit had refrained from touching the issue of jurisdiction – apart from its sanctimonious suggestion that, given a true next friend, the situation might be different – a case involving precisely this situation was already pending before the Court of Appeals for the District of Columbia Circuit, a fact that must have been known in the Ninth Circuit as well! This case was a merger of the appeals to three District Court decisions concerning not all but some of the Guantánamo Bay detainees (twelve Kuwaiti nationals, an Australian and two British nationals, and one Australian, respectively). The matter of representation was not at issue, as the complaints had been lodged by persons who were held to fulfil the requirements for true next friends. In each of the cases, the US Government had asked the District Court to take judicial notice of the fact that the detainees were “enemy combatants”, the detainees had denied this and the Court had assumed the truth of their denials. However, they were unmistakably aliens; and the Court, reading the claims of all of them as habeas petitions, ruled that it lacked jurisdiction to issue writs of habeas corpus for aliens detained outside the “sovereign territory” of the United States. The Court of Appeals was faced with two questions. The first question concerned the qualification of the detainees. While they were undoubtedly “aliens”, the detainees denied that they were enemy aliens. The other question was whether the Court had jurisdiction over the detainees at Guantánamo Bay. The question regarding the classification of the aliens was related to a decision adopted by the Supreme Court in 1950 in a habeas case brought by German nationals who, after Germany’s surrender in May 1945 but before the capitulation of Japan in November, had assisted the Japanese forces that were fighting against the United States in China. They had been captured, tried by a military commission, convicted of violations of the law of war and incarcerated in a prison controlled by the US army in the American zone of occupied Germany. Their claims concerned violations of the US Constitution and other US laws, as well as the 1929 Prisoners of War Convention. After the District Court for the District of Columbia had dismissed the petition and the Court of Appeal had reversed the 28 29 30 31

Order List of the Court: 538 U.S., found on the web at: . US District Court for the District of Columbia, Nos. 02-5251, 02-5284 and 02-5288. Rasul v. Bush, 215 F. Supp. 2d 55 (D.D.C. 2002) at pp. 72-73. Khaled A.F. Al Odah, et al., v. United States of America, et al., No. 02-5251, consolidated with Nos. 02-5284, 02-5288; decided 11 March 2003.

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dismissal, the Supreme Court eventually agreed with the District Court that the prisoners had no right to petition for a writ of habeas corpus. In its opinion, the Supreme Court consistently referred to the petitioners as enemy aliens, but had this actually helped to determine its final conclusion? In the case at hand, the Court of Appeals read the opinion of 1950 as implying, first and foremost, that the classification of the petitioners as enemy aliens did not hinge on combatant status – which the Germans did not have, because they were civilians – but merely on the fact that they were nationals of a country at war with the United States. Obviously, the Guantánamo Bay detainees whose case was before the Court of Appeals were not in this position, nor were they therefore “enemy aliens” in the sense suggested by the Supreme Court in Eisentrager. More importantly, however, the Court also argued that the scope of Eisentrager was not limited to nationals of a State at war with the United States. It regarded as crucial the consideration of the US Supreme Court that the German prisoners “at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offence, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.” In the eyes of the US Court of Appeals, the determining factor is that jurisdiction of US courts in habeas cases is limited to “territory of which the United States is sovereign,” which is the territory within the geographic borders of the United States and its insular possessions – no more, no less. Specifically, the US naval base at Guantánamo Bay is excluded. The base is located on territory over which Cuba has sovereignty; a notion the Court defines as “supreme dominion exercised by a nation.” It concedes that “our military forces may have control” over that base; but “under Eisentrager, control is surely not the test.” After all, “our military forces also had control over the … prison in Germany.” The United States was then said to exercise a “sort of de facto sovereignty” over Guantánamo Bay, and the detainees sought support for this argument in an earlier case decided by the Court in 1977 in relation to residents of Micronesia, which, at the time, was a trust territory administered by the United States. However, the Court argued that “Congress intended the Micronesia Trust Territory to be treated as if it were a territory of the United States.” Not surprisingly, the Court therefore held that fundamental rights applied in that territory. In the case at hand, however, the Court argued that “Ralpho thus establishes nothing about the sort of de facto sovereignty the detainees say exists at Guantánamo.” In addition, “its reasoning does not justify this court, or any other, to assert habeas corpus jurisdiction at the behest of an alien held at a military base leased from another nation, a military base outside the sovereignty of the United States.” 32 33 34

Johnson v. Eisentrager, 339 U.S. Ibid., at p. 778. Ralpho v. Bell, 569 F.2d 607 (D.C. Cir. 1977).

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The Court finally addressed the fact that each of the detainees had alleged violations of the Constitution, treaties and US laws. Even if this were the case, the Court argued that this would not help the detainees. They cannot seek release based on violations of the Constitution or treaties or federal law; the courts are not open to them. Whatever other relief the detainees seek, their claims necessarily rest on alleged violations of the same category of laws listed in the habeas corpus statute, and are therefore beyond the jurisdiction of the federal courts. Nothing in Eisentrager turned on the particular jurisdictional language of any statute; everything turned on the circumstances of those seeking relief, on the authority under which they were held, and on the consequences of opening the courts to them. With respect to the detainees, these circumstances, that authority, and those consequences differ in no material respect from Eisentrager.

The final conclusion of the Court of Appeals is no surprise. Having “considered and rejected” all the arguments of the detainees, “[t]he judgement of the district court dismissing the complaint in No. 02-5251 and the petitions for writs of habeas corpus in Nos. 02-5284 and 02.5288 for lack of jurisdiction is Affirmed.” 3 Conclusion From the many reactions to Al Odah, I would like to mention just one. The day after the decision, on 12 March 2003, the Special Rapporteur of the UN Commission on Human Rights on the independence of judges and lawyers, Dato’ Param Cumaraswamy, described the decision as a dangerous precedent. He said the decision seemed to imply that the government of a sovereign State “could lease a piece of land from a neighbouring State, set up a detention camp, arrest suspects of terrorism from another jurisdiction, send them to this camp, [and then] deny them their legal rights – including principles of due process generally granted its own citizens – on grounds that the camp is physically outside its jurisdiction.” This reaction may be a bit too strong. The effect feared by Mr Cumaraswamy would not apply, for instance, in relation to all those States Parties to the European Convention on Human Rights that have accepted the competence of the European Court of Human Rights. It is true that, in this part of the world, the basic perception of the scope of jurisdiction in human rights matters is also territorial. In Bankovic, this Court makes this point forcefully. Interpreting Article 1 of the Convention (“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section i of 35

UN News Service, 12 March 2003, .

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this Convention”) the Court asserts that both according to its ordinary meaning and in view of its drafting history, the notion of “jurisdiction” in this provision is essentially territorial – essentially, but not exclusively. The Court reaffirms that a State Party is responsible for extra-territorial events when “through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, [it] exercises all or some of the public powers normally to be exercised by that Government.” In the case of Bankovic, this “extra-territorial event” – the aerial bombing, in the course of Operation Allied Force, of Radio Televizije Srbije in Belgrade – had occurred on 23 April 1999. In this case, the European Court concluded that NATO’s unmistakable air superiority did not imply the requisite effective territorial control. In an earlier case, however, the outcome had been different. In Loizidou, the Court overruled Turkey’s objection that the case concerned events in the northern part of Cyprus, which therefore fell outside its territory. It argued that “although Article 1 sets limits on the reach of the Convention, the concept of ‘jurisdiction’ under this provision is not restricted to the national territory of the High Contracting Parties.” A State may be responsible for violations of that Convention “when as a consequence of military action – whether lawful or unlawful – it exercises effective control of an area outside its national territory.” The military action attributed to Turkey in this case, and which unquestionably implied effective control, was the long-lasting occupation of the northern part of Cyprus, recognised by Turkey, as the only State in the world, as the “Turkish Republic of Northern Cyprus.” Loizidou and Bankovic represent two extremes of cases in which the victim of an alleged human rights violation committed outside the “sovereign territory” of the respondent State seeks to argue responsibility on the grounds of “effective control”. Loizidou was a prototype of such control. In Bankovic, ephemeral air superiority was beyond what the Court was prepared to regard as effective territorial control. In both cases, however, the important thing is that effective control was the criterion for attributing extraterritorial effect to human rights norms – precisely the criterion Al Odah rejects in the wake of Eisentrager. Within the Americas, the vast majority of States are party to the American Convention on Human Rights, with its Commission and Court that may not be loath to emulate Bankovic when they receive the opportunity. That leaves all 36 37

Bankovic, et al., v. Belgium, et al., Application no. 52207/99, decided on 12 Dec. 2001, para. 71. Loizidou v. Turkey, judgment of 23 March 1995 (preliminary objections), Series A no. 310, para. 62. The point was confirmed in the Court’s judgment on the merits of 18 Dec. 1996, Reports of Judgments and Decisions 1996-VI, paras. 54-57. The claim underlying the case was that Mrs. Titina Loizidou, a Cypriot national, was denied access to property she owned on the northern part of the island, a violation of her rights that fell under the responsibility of Turkey.

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other States, i.e., the States outside Europe and the Americas. A considerable number of these States may be party to the International Covenant on Civil and Political Rights, but the latter does not provide a court that is comparable to the Inter-American and European Courts of Human Rights. From the perspective of human rights, quite a few of these States could be described as “rogue States”, as they lack courts with effective jurisdiction over the authorities, which do not demonstrate any noticeable respect for human rights, whether within or outside their territories. These States did not need Al Odah to encourage them to behave in the manner predicted by Mr Cumaraswamy. Obviously, the United States does not belong to this category of “human rights rogue States”. On the contrary, it claims the right, or better still, the duty to spread human rights across the world. For such an active promoter of human rights, the time may now have come to consider some improvements in its own record. First, it should give up the idea that US domestic law in simply the best in the world. Following this, it should change its attitude towards the IACHR, perhaps even becoming party to the American Convention without submitting reservations against every provision of substance. Finally, its federal courts should accept Bankovic. In light of the situation at Guantánamo Bay, the United States’ frantic insistence on the notion of narrowly defined sovereign territory is ridiculous, or, to put it a bit more mildly, highly disappointing.

38

On the two US Court cases discussed above, see also C. M. Cerna, “Introductory Note to the US Court of Appeals Decisions in the Guantánamo Bay Cases”, 42 International Legal Materials (2003). Towards the end of her exposé, Cerna quotes Justices Black and Douglas, dissenting in Eisentrager, at length. One sentence may be quoted here again: “Our constitutional principles are such that their mandate of equal justice under law should be applied as well when we occupy lands across the sea as when our flag flew only over thirteen colonies”.

PART 5 compliance and enforcement

Chapter 27 Implementation and Enforcement of International Humanitarian Law*

1

Introduction

“Respect for international humanitarian law in armed conflicts” figured high on the agenda of the XXVth International Conference of the Red Cross, held in Geneva from 23 October to 1 November 1986. The subject was introduced by the President of the ICRC, Mr. Alexander Hay. Summarizing his introductory address, the report of Commission I notes that “Practices prohibited by international humanitarian law were becoming more and more common and obligations on the part of the signatory States were too often neglected or scorned”; and further on: “Serious and repeated violations of international humanitarian law made the ICRC’s humanitarian mission extremely difficult, and in certain cases impossible to carry out.” The resolution by which the Commission concluded its debate on this subject notes: a disturbing decline in the respect of international humanitarian law, particularly as regards the treatment of prisoners of war, civilian internees and other persons captured in armed conflicts, and as regards the conduct of hostilities and the treatment of civilian populations in violation of the laws and customs of war.

The Conference, thus, dealt with very much the same subject as the one that had been examined just a month earlier, from 18 August to 12 September 1986, by the participants to that year’s Centre for Studies and Research of the Hague Academy of International Law. Their subject had been defined in the programme as “the application of humanitarian law”. It was understood that the body of *

1 2

Published earlier under the title “The present state of research carried out by the English-speaking section of the Centre for Studies and Research”, in Hague Academy Centre for Studies and Research, The Application of Humanitarian Law (1986) pp. 71-102. XXVth International Conference of the Red Cross, Plenary Meeting: Report of the International Humanitarian Law Commission (I), para. 2.1.2. Ibid., Annex 1: Resolution adopted by consensus on “Respect for international humanitarian law in armed conflicts and action by the ICRC for persons protected by the Geneva Conventions”, 6th preambular para.

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“humanitarian law” indicated in the programme comprised more particularly the international humanitarian law applicable in armed conflict. As such, the subject referred to a fairly well-defined branch of international law which finds its source, besides custom, in well-known instruments such as the four Geneva Conventions of 1949 for the protection of war victims and the two Protocols additional to those Conventions of 1977. Obviously, the atmosphere and tone of the two meetings – the one in Geneva, the other in The Hague – has been as different as could be: strictly academic in the latter case, highly political in the former. Yet they both served the same interest: to promote the cause of respect for international humanitarian law in situations of armed conflict. Having acted as Director of Studies for the English-speaking section of the Centre, as well as subsequently as a delegate of the Netherlands Red Cross Society to the International Conference of the Red Cross, the present author is pleased to offer here some reflections on the state of affairs with respect to the implementation and enforcement of international humanitarian law applicable in armed conflict. 2

Factors Influencing Respect for International Humanitarian Law

Humanitarian law is part of public international law. As is well-known, respect for all the varied branches of international law depends, first and foremost, on the initiative and good faith of each individual State concerned: this is true as much of the implementation of the terms of a bilateral tax or air-traffic agreement as of a multilateral convention, say, relating to human rights. Other States, as well as institutions such as various organs of the United Nations or other competent organizations, may attempt to influence, or even to bring pressure to bear on a State which falls short of its international obligations: quite a few methods and procedures have been developed to this effect. Even so, for the process of decision making in the State in question ultimately to result in respect of its international obligations, good faith on the part of the decision makers will always be an indispensable element. The will of States is an important factor, not only in this process of determining whether existing international obligations will be respected, but in the development and acceptance of new (customary or conventional) rules of international law as well. In all those cases where rules of international law happen to coincide perfectly with the interests of the State, the chances are therefore that they will be almost automatically respected. Problems are apt to arise, however, when either 3

For texts of these instruments, see, e.g., D. Schindler & J. Toman, The Laws of Armed Conflicts, 2nd ed. (1981); A. Roberts & R. Guelff, Documents on the Laws of War (1982); ICRC and League of Red Cross Societies, International Red Cross Handbook, 12th ed. (1983).

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specific interests of the State militate against the application of a particular rule of international law, or other factors make for a situation unfavourable to such application: in such circumstances, respect for international law may become a highly uncertain matter. These remarks about international law in general apply without reserve to the specific branch of international humanitarian law applicable in armed conflict. In particular, it may be safely stated that the customary and conventional rules which together constitute the body of humanitarian law have come into being as the outcome of a process of balancing of interests of the States participating in the process. This is not to say that even so a State might never have reason to hesitate about the desirability of one or other specific rule: this may embody a compromise which the representatives of the State have found hard to accept, or it may be a very old rule which the State regards as unsuitable for present purposes. Normally, however, an attitude of respect for the generality of the applicable rules will be to the advantage of the State, if only to put it in a position where it may expect the same from its adversary: so-called positive reciprocity. At the same time, the situation of armed conflict is characterized by a number of negative factors which tend to impede a quasi automatic, faithful application of international humanitarian law. A first characteristic element is the very violence inherent in such a situation: obviously, this factor is not at all conducive to an attitude of scrupulous respect for obligations of international law, whether humanitarian or other. Another negative element lies in the great mass of people who may find themselves directly involved in situations requiring application of rules of humanitarian law: rather than being confined to a comparatively small circle of government officials and other directly interested parties (as in the case, say, of an air-traffic agreement, or a protocol establishing diplomatic relations), their numbers include all the members of the armed forces, from the commander-in-chief down to the last soldier, as well as, depending on the circumstances, the members of other organizations such as the police, civil defence, etc. Indeed, more often than not, important parts of the civilian population may become so involved as well. The picture becomes even less bright when it is noted that in present-day international humanitarian law, a distinction is made between two types of armed conflict: on the one hand, international armed conflicts (basically: between two or more States) and on the other, internal ones (i.e., conflicts not of an international character and being waged within the territory of a single State). The body of rules and principles applicable in international armed conflicts has been elaborated in great detail but not always with enough clarity to admit of easy application. On the other hand, whereas internal armed conflicts form the majority of contemporary armed conflicts and, moreover, have a tendency to be particularly violent, the set of humanitarian rules applicable in such conflicts has thus far remained far below the level of development of the law applicable in international armed conflicts.

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Taking all these negative elements together, there remains little room for light-hearted optimism regarding automatic respect for humanitarian standards in all armed conflicts. Yet, the situation is by no means desperate: as will be shown in subsequent chapters of this paper, the existing body of international humanitarian law applicable in armed conflict provides a particularly rich array of means and methods for the promotion of respect for its substantive principles and rules. While these are always susceptible to improvement, it is now first and foremost a task for the international community of States to utilize these existing means and methods with somewhat greater consistency and vigour than was often the case in the past. Hereinafter, for briefness’ sake, we shall utilize “humanitarian law” whenever we want to refer to international humanitarian law applicable in armed conflict. 3

National Measures

As noted, application of humanitarian law is, first of all, a task incumbent on each individual State. We shall therefore begin by examining in some detail the various ways and means at the disposal of the State to discharge its duties in this respect. A catalogue of available means might list: measures of a legislative order, including the issue of regulations and instructions for the armed forces and other organizations; programmes for the dissemination of knowledge; creation of a group of qualified persons, inter alia, to act as legal advisers in the armed forces; and, last but not least, establishment and maintenance, within the armed forces, of a system of discipline suitable to enforce compliance with the applicable rules of international humanitarian law. A preliminary remark of a general order concerns the time factor. As may be evident, implementation of a State’s obligations under international humanitarian law is a matter of most immediate concern when that State is actually involved in an armed conflict. This applies as much to its primary obligations (to keep prisoners of war alive, not to direct attacks against the civilian population, etc.) as to those of a secondary nature, to which belong its national measures of application. Yet, for these national measures to have their full effect in time of armed conflict, they must at least, if at all possible, have been prepared already in time of peace. As will be seen, this need of peacetime preparation is recognized in various instances in the existing humanitarian Conventions. Obviously, this requirement of peacetime preparation provides an additional difficulty, in particular in respect of those developing States whose legislative and executive branches are still more than fully occupied with the many acute problems arising from their newly acquired independence: as long as they are not actually involved in an armed conflict, they can hardly be expected to pay a great deal of attention to a matter which they may be inclined to consider as of remote concern. As a matter of fact, and with less of an excuse, even States of long standing often show this tendency to regard national measures for the application of

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humanitarian law as something that can be postponed till such time as the need arises. It is, therefore, necessary constantly to remind all States of their obligations in this respect and, where necessary, to offer them help in discharging these obligations. 3.1

Instructions for the Armed Forces

Under the heading “legislation” come, first of all, measures of a legislative order directed at the armed forces and aiming to ensure conduct in accordance with the rules of humanitarian law. An early example of such a directive is the Instructions for the Government of Armies of the United States in the Field, promulgated as General Orders No. 100 by President Lincoln on 24 April 1863 as a field manual for the armed forces of the (northern) United States in the American Civil War. The Instructions are usually referred to, after their principal author, as the Lieber Instructions. It is a remarkable feature that the Instructions were written for a case of civil war, that is, internal armed conflict. They have served as a model for subsequent codifications of humanitarian law. Of interest in the present context is also the work undertaken in the 1870s by the Institute of International Law, which culminated in the publication, on 9 September 1880, of the so-called Oxford Manual. As set forth in its preface, the Manual was offered to governments “as the basis for national legislation in each State”; in order to facilitate their task, the Institute had “given its work a popular form, attaching thereto statements of the reasons therefor, from which the text of a law may be easily secured when desired.” The Manual consisted of 86 articles, covering all aspects of the laws of war on land as perceived by its learned authors. While the members of the Institute had envisaged their Manual as nothing but a model law, the Regulations Respecting the Laws and Customs of War on Land annexed to the Hague Convention (II) with Respect to the Laws and Customs of War of 29 July 1899, already had a different character: they provide a set of rules for the conduct of land warfare, brought about as the result of negotiations in an international conference of States, the Hague Peace Conference; and they were designed to lay down binding obligations of international law for the contracting States. Article 1 of the Convention invites contracting States to “issue instructions to their armed forces, which shall be in conformity with the ‘Regulations respecting the laws and customs of war on land’ annexed to the present Convention.” And indeed, at least part of the rules set forth in the

4 5

The Lieber Instructions are reprinted in Schindler & Toman, op. cit. note 3, p. 3. Ibid., p. 35.

600 Chapter 27 Regulations was suitably phrased to permit their being copied almost verbatim into national instructions for the armed forces as they then were. The Second Hague Peace Conference, 1907, produced a revised version of the Convention (this time: Convention IV) and of the Regulations. For present purposes, nothing much had changed: both the character and most of the text of the Regulations and the first obligation expressed in Article 1 of the Convention had remained the same. In later years, new treaties were added to the list of humanitarian instruments. The point to be made here is that these new additions had less and less the character of model regulations. On the contrary, their character as a bundle of more or less abstractly phrased rules, spelling out a series of international legal obligations of the contracting States, became .ever more prominent. At the same time, the armed forces of industrializing States became ever more complex and sophisticated organizations, with branches as diverse as the foot-soldier’s infantry, the tank battalion, the “special forces” (usually trained for action in the rear of the enemy positions), the tactical and strategic air forces, and the guided-missile battery. Warfare became more mobile and stationary front lines gradually became something of the past, especially with the increasingly widespread recourse, in many contemporary armed conflicts, to the tactics of guerrilla warfare. As a result, the “translation” of the internationally agreed rules of humanitarian law into national instructions for the armed forces has become an ever more difficult task. That it is and remains an obligation of States is put beyond question by the text of Article 80(2) of Protocol I of 1977, providing that: The High Contracting Parties and the Parties to the conflict shall give orders and instructions to ensure observance of the Conventions and this Protocol, and shall supervise their execution.

To be effective, such instructions must address each of the various branches of the armed forces separately, and for each branch they must deal with the diverse situations this branch is trained to deal with. Especially in sophisticated armed forces, this type of instruction is likely to be given in the shape of Rules of Engagement, spelling out in some detail the tactics a particular branch, or unit, is to apply in such and such a tactical situation. 6 7 8

Ibid., p. 57. Loc. cit. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted at Geneva, 8 June 1977; Schindler & Toman, op. cit. note 3, at p. 551. Protocol II, formally entitled Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, is found ibid., at p. 619.

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Needless to say, to incorporate the generalized and juridically phrased rules of humanitarian law into these eminently practical Rules of Engagement requires a thorough knowledge and understanding both of the law and of the specific military demands made of a particular branch of the armed forces. It also requires a constant alertness for changes in those demands and the ensuing adjustments to be made in the Rules of Engagement. Typically, the task described here is one for doubly qualified military lawyers: they must be qualified not only as lawyers but equally as military men. It may be noted here that Article 82 of Protocol I requires the availability of legal advisers, inter alia, “to advise military commanders at the appropriate level on the application of the Conventions and this Protocol.” Equally self-evident, the problems identified here arise in particular with respect to complex military organizations with a great diversification of tasks and “job descriptions”, so to speak. In the comparatively less sophisticated armies of many States, the translation of the requirements of humanitarian law into practical terms, understandable down to the level of the common soldier, will be that much easier: it is, basically, a matter of reducing the delicately balanced and therefore often convoluted legal phraseology of conventional texts to short, straightforward statements that offer clear guidelines for the day-to-day military handiwork. An example of how this can be done may be seen in the Fundamental Rules of International Humanitarian Law Applicable in Armed Conflicts, which saw the light as the result of a joint effort of experts from the ICRC, the League of Red Cross and Red Crescent Societies, and national Societies. One particular difficulty confronting all those who set about writing instructions for the armed forces, whether sophisticated or not lies in the distinction, introduced in 1949, between international and internal armed conflicts. In effect, the rules of humanitarian law applicable in international armed conflicts are far more elaborate and in part even quite different to those applicable in internal armed conflicts. Should one therefore write two sets of instructions, one for each type of armed conflict? This does not seem a very plausible solution. When the instructions are prepared in time of peace, they will normally be drafted with a view to the possible engagement of the armed forces in an international armed conflict, this being the situation for which the armed forces are normally trained. When, on the other hand, instructions are written only after the outbreak of hostilities (for instance, because that moment coincides with the creation of the armed forces), they can be drafted with a view to the particular type of armed conflict in which the forces

9

The text, elaborated subsequent to the adoption of the Additional Protocols, 1977, was published in IRRC Sept.-Oct. 1978. In 1983, the ICRC published a brochure entitled Règles essentielles des Conventions de Genève et de leurs Protocoles Additionnels, which opens with the list of fundamental rules.

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are engaged. This was, in effect, the case with the Lieber Instructions which, as we saw, were promulgated in 1863, during the course of the American Civil War. Another, quite recent, example of such a set of instructions issued in the course of an armed conflict is provided by the Code of Conduct for the National Resistance Army, the armed forces of the National Resistance Movement of Museveni in Uganda. The Code, drawn up in March 1982 for what then was an opposition party in an internal armed conflict, was officially published in 1986, once the Movement had established itself as the governing power in the country. Interestingly, the Code goes to great lengths to ensure a high standard of discipline among the members of the NRA as well as a proper level of protection of the “public”, i.e., the non-participating civilian population. With respect to the adversary, the main prescription is never to kill captured enemies, “as the guns should only be reserved for armed enemies or opponents.” 3.2 Discipline It is an almost trite observation that in order to ensure respect for humanitarian law, armed forces must be subject to an effective system of discipline. This emerged clearly from what was related a moment ago about the Code of Conduct of the Ugandan National Resistance Army. Discipline has always been a more or less natural characteristic of armed forces. Indeed, it appears no exaggeration to state that discipline constitutes a prerequisite for an effective fighting force: only thus can a commanding officer expect that his orders will be obeyed, that fire will be delivered only on the targets, and at the time of his choice, and that excesses which distract his troops from their proper task, like plunder or the slaughter of civilians, will be avoided. In recognition of this fact, Article 43(1) of Protocol I provides in part that: The armed forces of a Party to a conflict … shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.

The commander who fails to enforce such compliance will expose himself to censure in accordance with Articles 86 and 87 of Protocol I, reading in relevant part:

10

11

The present author obtained a copy of this Code of Conduct at the 5th African Seminar on International Humanitarian Law, Yaounde, Cameroun, 26 Nov.-4 Dec. 1986. The copy is apparently from an official Ugandan document entitled Legal Notice No. 6 of 1986. Code of Conduct, A (4).

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Article 86 – Failure to Act 1. … 2. The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach. Article 87 – Duty of Commanders 1. The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the Conventions and of this Protocol. 2. … 3. The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators thereof.

While these rules on the responsibility of commanding officers follow with unmistakable logic from the requirement of discipline in Article 43, the language of this Article may raise another point as well: should one interpret it to mean that an armed force which lacks any “internal disciplinary system” does not at all qualify as an “armed force” in the sense of that Article, even though it meets the conditions of belonging to a Party to a conflict, being organized and “under a command responsible to that Party for the conduct of its subordinates” (Art. 43(1), first sentence)? The consequence of such an interpretation would be that its members are not “combatants”: they would not “have the right to participate directly in hostilities” (Art. 43(2), closing phrase) and, when falling into enemy hands, would not have the status of “prisoner of war”: Article 44(1) reserves this status to combatants “as defined in Article 43”. While this consequence might perhaps be justified in the extreme case of an armed group which totally lacks anything even remotely resembling a system of discipline (and, therefore, is more like a roving gang of bandits than like an

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armed force in the proper sense of the term) it is probably correct to state, with Waldemar A. Solf, that: The structure of the paragraph … as well as the negotiating record and the provisions of Article 44(2) strongly militate against any construction that this provision constitutes one of the conditions for qualification as an armed force.

The requirement of discipline can be perverted in another direction as well: at times, it has been carried so far as to amount to blind obedience to orders (“Kadavergehorsam”). Inasmuch as blind obedience is apt to lead to the unquestioned execution of orders in flagrant violation of specific rules of humanitarian law, it must of course be rejected outright. The point to be remembered here is that individual members of the armed forces will have to respond for their acts, even if these were performed in execution of superior orders. This has been made perfectly clear in the war crimes trials conducted in the aftermath of the Second World War. In 1950, the UN International Law Commission adopted a set of Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal. Principle IV reads as follows: The fact that a person acted pursuant to the order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

In the 1970s, an attempt was made to have this principle internationally accepted as a legally binding text, by introducing it into Protocol I. The proposed text, submitted to the Diplomatic Conference, read as follows: 1.

2.

12 13 14

No person shall be punished for refusing to obey an order of his government or of a superior which, if carried out, would constitute a grave breach of the provisions of the Conventions [of 1949] or of the present Protocol. The fact of having acted pursuant to an order of his government or of a superior does not absolve an accused person from penal responsibility if it be established that, in the circumstances at the time, he should

Waldemar A. Solf wrote the commentary to Art. 43 in Bothe, Partsch, Solf, New Rules for Victim of Armed Conflicts (1982); the quoted phrase is on p. 238. The Principles are reprinted in Schindler & Toman, op. cit. note 3, p. 835. Art. 77 of Draft Additional Protocol I, submitted by the ICRC to the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974-1977; reprinted in the Official Records of the conference, published by the Swiss Government, Vol. I, Part III, p. 25: CDDH/l.

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have reasonably known that he was committing a grave breach of the Conventions or of the present Protocol and that he had the possibility of refusing to obey the order.

The effort came to nought, however, as in the end the draft Article, as amended in the course of the negotiations, failed to obtain the necessary two-thirds majority. This leaves the matter to be regulated by the rules of customary international law concerning superior orders. It should be emphasized once again that these customary rules imply without any doubt that the mere fact of having acted pursuant to an order cannot absolve a person from his individual responsibility. Completely in accordance with this principle, the earlier quoted Code of Conduct for the Ugandan National Resistance Army lists under offences of category A (which attract the death penalty): “disobedience of lawful orders resulting in loss of life of members of NRA or our supporters”, and under category B (attracting lesser punishments), “disobedience of lawful administrative orders” (my emphasis). 3.3

Dissemination

Respect for rules of humanitarian law presupposes, besides the issue of instructions and the establishment and maintenance of a system of discipline, knowledge about the relevant rules. This “need to know” implies the necessity of dissemination of humanitarian law, primarily, although not exclusively, among the armed forces. An express requirement of dissemination was formulated for the first time in Article 27 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, signed at Geneva, 27 July 1929: The High Contracting Parties shall take the necessary steps to instruct their troops, and in particular the personnel protected, in the provisions of the present Convention, and to bring them to the notice of the civil population.

All subsequent conventions contain similar provisions. For example, Article 47 of the First or Wounded and Sick Convention of 12 August 1949 provides that:

15 16

17

Official Records, Vol. VI, p. 307: CDDH/SR.45. Schindler & Toman, op. cit. note 3, p. 257. The Prisoners of War Convention, signed on the same date, does not contain a similar provision; on the other hand, Art. 84 provides that the text of the Convention “shall be posted, whenever possible, in the native language of the prisoners of war, in places where it may be consulted by all the prisoners”; ibid., p. 271. Ibid., p. 305.

606 Chapter 27 The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries, and, in particular, to include the study thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become known to the entire population, in particular to the armed fighting forces, the medical personnel and the chaplains.

Nearly identical provisions are found in the other three Geneva Conventions of 1949. Conspicuous improvements over the text of 1929 are: the express reference to time of peace besides time of war, and the indication of the ultimate purpose of dissemination, which is knowledge of the principles of humanitarian law among the entire population. The Convention for the Protection of Cultural Property in the Event of Armed Conflict, signed at The Hague on 14 May 1954, contains a virtually identical obligation in Article 25. Protocol I of 1977 contains a slightly modified version of the same obligation: whereas in the earlier texts the inclusion of the study of the various Conventions in programmes of civil instruction was qualified by the words “if possible” (leading to the all too easy excuse that such inclusion had not in fact proved possible), Article 83(1) of the Protocol contains the undertaking of the contracting States “to encourage the study thereof by the civilian population.” Moreover, on top of the general obligation laid down in Article 83(1), paragraph 2 provides specifically that: Any military or civilian authorities who, in time of armed conflict, assume responsibilities in respect of the application of the Conventions and this Protocol shall be fully acquainted with the text thereof.

After this remarkably complete and carefully phrased Article in Protocol I, it is something of a disappointment to find that Protocol II, applicable in internal armed conflicts, confines itself to the all too vague, passively phrased statement that “This Protocol shall be disseminated as widely as possible” (Art. 19). Not only does this text lack a reference to dissemination in time of peace, but it fails to indicate any party or authority that would be charged with the dissemination of this Protocol. Last to be mentioned here is the Convention on Prohibitions and Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, adopted by a United Nations Conference at Geneva on 10 October 1980 and signed on 10 April 1981. Article 6 provides for dissemination of the Convention and annexed Protocols (relating to particular types of weapon) “as widely as possible in their respective 18 19

Ibid., p. 689. Roberts & Guelff, op. cit. note 3, p. 467.

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countries” and specifies that the contracting States shall “include the study thereof in their programmes of military instruction, so that those instruments become known to their armed forces” (my emphasis). Taking into account the nature of the subject-matter of this Convention, the restriction to military instruction appears justified. Clear though the various above obligations of dissemination may be, the responsible authorities in numerous countries, both developed and developing, have so far been largely lacking in their duties in this respect. Many programmes of military instruction, especially at the lower echelons, fall dismally short of what might be regarded as adequate instruction in basic precepts of humanitarian law. The situation with respect to dissemination among the civilian population is generally even worse. In these circumstances, national Red Cross and Red Crescent societies have, at the instigation of the ICRC and with the active support of the League, assumed tasks in this respect. Thus, the XXIVth International Conference of the Red Cross, held at Manila in 1981, adopted Resolution No. X by which it not only urged governments: to fulfil entirely their obligation to disseminate knowledge of international humanitarian law among their armed forces, ministries, academic circles, schools, medical professions and general public, in particular by encouraging the establishment of joint committees representing the appropriate ministries and National Red Cross and Red Crescent Societies to develop such activities,

but also noted “the special responsibilities of National Societies to assist their Governments in this work” and invited these Societies: to train national officials to be responsible for dissemination, and to co-operate also with their authorities, especially on the joint committee on dissemination.

The Resolution moreover asked “the ICRC and the League, each within its own sphere, to help National Societies to draw up and implement national and regional dissemination programmes.” An annex to the Resolution provided a Programme of Action on the Dissemination of International Humanitarian Law and the Principles and Ideals of the Red Cross. Many activities have since been developed by national societies, as well as by the ICRC and the League. As for the ICRC, it has decided, on top of its general activities, to make a special effort of dissemination in countries involved in an 20

The Resolution is reprinted in the International Red Cross Handbook, op. cit. note 3, p. 634.

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(international or internal) armed conflict, as in those countries the need is obviously most acute. Useful though this stepped-up activity on the part of the Red Cross and Red Crescent Movement may be, it can in no way dispense the authorities from their responsibilities under the various Conventions. It should be emphasized that commanding officers have a special duty in this regard: Article 87(2) of Protocol I lays down that: In order to prevent and suppress breaches, High Contracting Parties and Parties to the conflict shall require that, commensurate with their level of responsibility, commanders ensure that members of the armed forces under their command are aware of their obligations under the Conventions and this Protocol.

In discharging this duty, commanders may profit by the advice of the legal advisers provided for in Article 82: among their tasks is to advise commanders “on the appropriate instruction to be given to the armed forces.” Needless to say, this advisory function of the legal adviser cannot relieve the commander of his responsibility. 3.4

Repression of Violations

To put war criminals on trial has been a right of States since time immemoria1. However, it is a different question whether States are under any obligation to repress violations of the laws of war. An engagement “to take, or to recommend to their legislatures, the necessary measures to repress, in time of war, individual acts of robbery and ill treatment of the sick and wounded of the armies” was included as long ago as 1906 in Article 28 of the Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field. A similar formula is found in Article 21 of the Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 1907. The Wounded and Sick Convention of 1929 contains an improved version of the formula, with Article 29 requiring legislative measures with respect to “any act contrary to the provisions of the present Convention.” In 1949, the system was further improved and elaborated. A first, major development was the introduction of a distinction between “grave breaches” (as 21 22 23 24 25

See generally Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals, Vol. II: The Law of Armed Conflict (1968). Schindler & Toman, op. cit. note 3, p. 233. Ibid., p. 245. Supra, text at note 16. E.g., Art. 49 of the First Convention.

Implementation and Enforcement of International Humanitarian Law 609 defined in each of the four Geneva Conventions of that year) and all other acts contrary to the provisions of these instruments. With respect to grave breaches, the contracting States undertake “to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed”, such breaches. And their obligations do not stop at legislation: they are also obliged “to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches”, and to bring such persons, “regardless of their nationality”, before their own courts or hand them over for trial to another contracting State that “has made out a prima facie case.” It is generally assumed that all States have jurisdiction over such grave breaches, irrespective of the nationality of the accused or the place of the crime. As for other violations, the Conventions are confined to the statement that contracting States “shall take measures necessary” for their suppression. The same system of obligations applies to the repression of breaches of Protocol I: to this effect, Article 85. While it is not here the place to enter into a detailed description of the grave breaches as defined in the Geneva Conventions of 1949 and the Protocol of 1977, it may be useful to point out that the system as laid down in the Conventions hinges on two essential elements: it envisages only acts (such as killing, torture or inhumane treatment) committed against the various well-defined categories of persons especially protected by those Conventions, and it requires that the acts have been committed wilfully. In Protocol I of 1977, the first element was to some extent abandoned with the introduction of grave breaches relating to the general protection of the entire civilian population against the effects of hostilities (such as: launching an indiscriminate attack affecting the civilian population). On the other hand, Protocol I reinforces the system of repression of breaches by introducing, in Article 86, a general duty of contracting States and Parties to the conflict to suppress such breaches “which result from a failure to act when under a duty to do so.” It was already mentioned in the foregoing that, and how, the Protocol elaborates this general duty into detailed rules concerning the responsibilities and duties of commanders. It can hardly cause surprise that Protocol II, relating to internal armed conflicts, is completely silent on the matter of repression of breaches. The Hague Convention for the Protection of Cultural Property too contains a (rather weak) provision concerning repression of breaches. Article 28 merely requires contracting States: to take, within the framework of their ordinary criminal jurisdiction, all necessary steps to prosecute and impose penal or disciplinary sanctions upon those

26

Supra, text at note 18.

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While the obligations of States to take legislative and other effective steps for the repression of breaches are, thus, more or less carefully defined in the various humanitarian instruments, the fact should be emphasized that States have retained their unfettered customary right to punish all violations of the “laws and customs of war”. Another final comment under this heading concerns the extent to which contracting States have discharged, or failed to discharge, their duties of legislation, in particular, under the Conventions of 1949. Although accurate information is not available, the impression is that a number of States have done little or nothing in this regard. Attempts undertaken by the ICRC to acquire the necessary information remained without too much success, if only because many States did not answer its questionnaires. Conscious of this situation, the XXVth International Conference of the Red Cross, held at Geneva from 23 October to 1 November 1986, adopted a Resolution on National Measures to Implement International Humanitarian Law, operative paragraph 3 of which: appeals to the Governments and National Societies to give the ICRC their full support and the information to enable it to follow up the progress achieved in legislative and other measures taken for implementation of International Humanitarian Law (my emphasis).

It will be noted that national societies are addressed here besides the governments, in the hope that considerations of sovereignty and prestige will carry less weight with the former and results may therefore be forthcoming sooner than if only governments had been addressed. 4 The International Level If States were generally diligent in complying with their obligations on the national level, the need for measures on the international level would be that much reduced. Practice shows, however, that much remains to be desired in this respect. Accordingly, a number of mechanisms have been developed for the international promotion of respect for humanitarian law. 4.1

Reprisals

Historically probably the oldest device is recourse to belligerent reprisals, by the party that considers itself the victim of a violation of the law of armed con27

Report of Commission I, Annex 5.

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flict on the part of its opponent. The arbitrariness inherent in such a form of recourse to negative reciprocity combined with the likelihood that it will affect innocent people rather than the actual responsible persons, as well as the evident risk of escalation if the opponent retaliates in turn, have entailed that recourse to reprisals has been increasingly prohibited in humanitarian law. The first express prohibition is found in Article 2 of the Convention Relative to the Treatment of Prisoners of War, signed at Geneva on 27 July 1929: “Measures of reprisal against them are forbidden.” Similar categorical prohibitions were subsequently adopted in all four Geneva Conventions of 1949. Thus, Article 46 of the First Convention prohibits reprisals “against the wounded, sick, personnel, buildings or equipment protected by the Convention.” The Hague Convention of 1954 for the Protection of Cultural Property likewise prohibits categorically “any act directed by way of reprisals against cultural property” (Art. 4(4)). It remained for Protocol I of 1977 to deal with the delicate issue of reprisals against the civilian population: a practice well-known from World War II and, indeed, to give a more recent example, from the ongoing armed conflict between Iran and Iraq. Over the objections of several States, the Protocol came to prohibit all possible recourse to reprisals against the civilian population or individual civilians (Art. 51(6)), against the generality of civilian objects (Art. 52(1)), and against a series of specially listed objects (Art. 53: particularly important cultural objects and places of worship; Art. 54: objects indispensable to the survival of the civilian population; Art. 55: the natural environment; and Art. 56: works and installations containing dangerous forces). Commission III of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974-1977, adopted the above provisions by a large majority in the course of the second session. With that, the debate was far from over, however: it shifted from Commission III (which dealt with the parts of the draft Protocols relating to combatants, means and methods of warfare, and the protection of the civilian population) to Commission I (charged with the general provisions at the outset of the Protocol, the rules on execution, and the so-called final provisions). In April 1976, at the third session, France introduced in Commission I a proposal for a new Article. The proposed text stated the principle that:

28 29 30

Supra, note 16. The Wounded and Sick Convention of that year contains no similar provision. Official Records, Vol. XV, p. 259: CDDH/215/Rev.1: 2nd session, Report of Commission III; the vote was 58 in favour, 3 against, and 9 abstentions. Ibid., Vol. II: CDDH/1221/Rev.l; proposal to add a new Article 74bis.

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Chapter 27 In the event that a Party to a conflict commits serious, manifest and deliberate breaches of its obligations under this Protocol, and a Party victimized by these breaches considers it imperative to take action to compel the Party violating its obligations to cease doing so, the victimized Party shall be entitled, subject to the provisions of this Article, to resort to certain measures which are designed to repress the breaches and induce compliance with the Protocol, but which would otherwise be prohibited by the Protocol.

The proposal then listed three conditions to be fulfilled before the measures could be carried into effect: they would have to be a last resort, the decision must be taken at the highest level of the government, and the enemy must be formally warned of the intended measures. If these conditions were met and it proved imperative to take the measures, their execution would have to meet the following requirements: proportionality of the measures to the violations prompting them, no actions amounting to a breach of the Geneva Conventions of 1949, and cessation of the measures once they have achieved their objective. The French proposal obviously was a thinly disguised attempt to reintroduce a right of reprisals, specifying at the same time the generally accepted conditions of customary international law for recourse to measures of reprisal. In view of the uncompromising attitude of the majority in the Conference, which had shown itself almost allergic to the very word “reprisals”, the proposal stood no chance of success. Ultimately, France withdrew it in May 1977, before it could be defeated. In some quarters, the feeling persists that the total prohibition of reprisals, not only against civilians, but against all civilian objects, deprives States of a necessary means to check attacks on their civilian population. Drawing the consequence out of these misgivings, Italy has attached to its ratification of the Protocol a declaration to the effect that, in the event of an enemy committing serious and systematic violations of its obligations under the Protocol and notably under Articles 51 and 52 thereof, it shall react to those violations with all means admissible under international law, to prevent further violations. The Italian declaration, which obviously takes its inspiration from the abortive French proposal, comes dangerously close to a reservation. Although Protocol I does not prohibit reservations, the negotiating history leaves no doubt that a strong majority in the Conference was not prepared to accept the idea of reservations with respect to the prohibitions on reprisals. Moreover, while Article 60(2) of the Convention on the Law of Treaties, signed at Vienna on 23 May 1969, entitles the victim of a material breach of a multilateral treaty to suspend “the operation of the treaty in whole or in part in the relations between itself and the defaulting State”, paragraph 5 expressly excludes “provisions prohibiting any form 31 32

Ibid., Vol. IX: CDDH/I/SR.72, para. 3. Revue internationale de la Croix-Rouge, March-April 1986, p. 115.

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of reprisals against persons protected by such treaties” (i.e., treaties of a humanitarian character) from the operation, inter alia, of paragraph 2. Application of the Italian declaration in a concrete instance might therefore be regarded as incompatible with Article 60 of the Vienna Convention. To the best of my knowledge, no objections have so far been formulated against the declaration. 4.2

Fact-finding

A far more “peaceful” method of enforcing respect for humanitarian law may be seen in attempts, undertaken during an armed conflict, to establish the facts with respect to alleged violations. Take the case of an alleged aerial attack on a hospital: was there really an attack directed against the hospital, or was it directed against a military objective in its immediate vicinity? How much damage was done to the hospital? Was the damage caused by bombs dropped from the air, or by other factors? An objective observer is rarely present at such occasions, and experience shows that the Parties to the conflict are likely to give diametrically opposed versions of the facts. In such a situation, it is of course possible for the Parties to the conflict to set up, in mutual agreement, an enquiry into the facts. The Geneva Conventions of 1949 make express provision for the institution of such an enquiry, spelling out that “Once the violation has been established, the Parties to the conflict shall put an end to it and shall repress it with the least possible delay” (e.g., Art. 52 of the First Convention). If such a procedure were followed, the need for reprisals would disappear. Unfortunately, these provisions in the Geneva Conventions have never found application in practice. One obvious difficulty is that application requires the conclusion of an agreement to that effect during the conflict, and at a time when a violation of the Conventions has already been alleged: hardly a conspicuous moment for such a step. In an attempt to overcome this difficulty, Article 90 of Protocol I makes provision for the establishment of an International Fact-Finding Commission. The Commission, to be composed of “fifteen members of high moral standing and acknowledged impartiality”, shall be established as soon as 20 contracting States “have agreed to accept the competence of the Commission”; this they must do by means of a unilateral declaration: that they recognize ipso facto and without special agreement, in relation to any other High Contracting Party accepting the same obligation, the competence of the Commission to enquire into allegations by such other Party, as authorized by this Article.

The Commission, once established, shall be competent to examine the facts concerning alleged serious violations of the Conventions or the Protocol, and to

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“facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol.” These activities provided for the Commission may be expected to contribute considerably to the speedy and fair settlement of disputes arising from allegations of serious violations and to the reduction of tensions attending such allegations. For the time being, however, the number of States that have declared their readiness to accept the competence of the Commission is not yet sufficient for its establishment. 4.3

Supervision

The idea that the implementation of humanitarian law should be submitted to international supervision has developed mainly within the framework of the law of Geneva. In normal times, States are accustomed to protect the rights of their nationals in foreign countries (so-called diplomatic protection). When the relations between States A and B deteriorate to the point where diplomatic relations are severed, it is customary for State A to ask a third State C to protect its interests and those of its nationals in respect of, and with the agreement of, State B. Supposing that an armed conflict then breaks out between A and B, what could be more natural than that C continues to protect the interests of A’s nationals – who in their relation to B suddenly find themselves in the position of “enemy nationals”, “internees” or “prisoners of war”. In the 19th century this obvious possibility developed into a customary practice. It was codified, first, in the Prisoners of War Convention of 1929 and subsequently in all four Conventions of 1949, as the system of Protecting Powers. The relevant Articles of the latter Conventions (Art. 8 common to Conventions I-III, Art. 9 of Convention IV) lay down that these “shall be applied with the cooperation and under the scrutiny of the Protecting Power whose duty it is to safeguard the interests of the Parties to the conflict.” For this purpose, the Protecting Powers may use their diplomatic or consular staff or appoint special delegates; for obvious reasons, any such special appointments require the approval of the Party to the conflict with which the delegates are to carry out their duties. The Parties to the conflict must “facilitate to the greatest extent possible the task of the representatives or delegates of the Protecting Powers.” The latter persons are in turn obliged not to exceed their mission and, in particular, always to “take account of the imperative necessities of security of the State wherein they carry out their duties.” The “co-operation and scrutiny” of the Protecting Powers has in practice assumed the character of management of interests and mediation. When their delegates become aware, whether from personal observance or complaints of the 33 34

Arts. 86 and 87. Art. 8 common to Conventions I-III, Art. 9 of Convention IV.

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victims, that prisoners of war are suffering from bad housing conditions or a lack of food, or are compelled to do forbidden types of work or are not allowed to send and receive mail, or are maltreated in any other manner, it is their job to seek an improvement of the situation. On the other hand, it is not the task of Protecting Powers to act as a sort of public prosecutor, investigating and exposing violations of the Conventions; were they to embark on such a course of action, they would soon find themselves discharged of their functions. The above provisions of the Conventions “constitute no obstacle to the humanitarian activities which the International Committee of the Red Cross or any other impartial humanitarian organization may, subject to the consent of the Party to the conflict concerned, undertake for the protection of [protected persons] and for their relief ” (thus Art. 9 of Conventions I-III, Art. 10 of Convention IV). The express mention of the ICRC amounts to an official recognition of its customary right of initiative in matters of humanitarian succour. The Articles do not, however, provide the ICRC with a formal supervisory capacity such as that which has been assigned the Protecting Powers. The last Article on the subject of outside supervision (Art. 10 of Conventions I-III, Art. 11 of Convention IV) seeks to provide for the (all too frequent) case that the functions of Protecting Powers are not in fact being performed, for instance, because the Parties to the conflict do not succeed in agreeing on the appointment of such Powers. The Article mentions in its first paragraph the possibility for Contracting Parties to “agree to entrust to an organization which offers all guarantees of impartiality and efficacy the duties incumbent on the Protecting Powers.” Thus far this has remained a theoretical possibility, however, as no such agreement has ever been brought about. Then, whenever protected persons “do not benefit or cease to benefit, no matter for what reason, by the activities of a Protecting Power or of an organization provided for in the first paragraph”, the Party to the conflict which holds them in its power (indicated as the Detaining Power) is obliged to “request a neutral State, or such an organization, to undertake the functions” of a duly designated Protecting Power. This formulation in paragraph 2 does not require the agreement of the adverse Party. However, the Soviet Union and its allies have made an express reservation on this point, stating that they “will not recognize the validity” of such requests “unless the consent of the Government of the country of which the protected persons are nationals has been obtained.” Even without this reservation a Detaining Power might have difficulty in finding a neutral State or impartial organization prepared to accept, without the consent of the adverse Party, the functions of a Protecting Power. Be this as it may, the third paragraph of the Article provides that if none of the above leads to protection being arranged, the Detaining Power “shall request or shall accept, subject to the provisions of this Article, the offer of the services 35

Schindler & Toman, op. cit. note 3, p. 517.

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of a humanitarian organization, such as the International Committee of the Red Cross, to assume the humanitarian functions assumed by Protecting Powers” under the Conventions. Even this provision cannot make the system watertight, however: the Detaining Power may choose simply to disregard its obligation to request the services of the ICRC or any other humanitarian organization, and the ICRC can hardly be expected to offer its services without first having ascertained that these are indeed welcome. As a matter of fact, since its creation in 1863 the ICRC has performed supervisory functions innumerable times and to the benefit of hundreds of thousands of prisoners of war, internees and other protected persons, and this side by side with the delegates of Protecting Powers or (more often probably) in their absence. It should be emphasized that the activities of the ICRC and its delegates are essentially aimed at improving the condition of protected persons. Obviously, in the course of its activities it cannot fail to come across numerous cases of more or less grave violations of the Conventions, and exceptionally, when all other methods to protect the interests of the victims have failed, it may even take recourse to publicly denouncing the practices involved. Even so, however, the ICRC has never counted the tracing and public exposure of individual perpetrators of war crimes among its tasks. In Protocol I an attempt has been made to improve the system of Protecting Powers. The relevant provisions are in Articles 5 and 6. Preceding these, Article 2(c) defines “Protecting Power” as: a neutral or other State not a Party to the conflict which has been designated by a Party to the conflict and accepted by the adverse Party and has agreed to carry out the functions assigned to a Protecting Power under the Conventions and this Protocol.

The definition makes clear that the appointment of a Protecting Power involves a triangular arrangement: for a given State to act as Protecting Power on behalf of one Party to the conflict in the territory of the adverse Party requires the consent of all three States. Article 5(1) opens by stating the principle that “[i]t is the duty of the Parties to a conflict from the beginning of that conflict to ensure the supervision and implementation of the Conventions and of this Protocol by the application of the system of Protecting Powers”, a system that includes “the designation and acceptance of those Powers, in accordance with the following paragraphs.” The paragraph adds that “Protecting Powers shall have the duty of safeguarding the interests of the Parties to the conflict.” This language is closely similar to the formula found in the Geneva Conventions. Yet, in those Conventions it was a simple reference to a factual situation (“the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict”), specifying how States in the past had almost automatically slipped into the role of Protecting

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Powers as a natural consequence of their earlier acceptance of the function of diplomatic representation on behalf of one of the Parties to a dispute that only subsequently evolved into an armed conflict. In Article 5(1), on the other hand, it assumes the character of an obligation laid upon a State which in the course of an armed conflict is designated, is accepted and accepts to act as a Protecting Power. In the context of the Protocol, this obligation cannot really be understood as a mere reference to a general duty of diplomatic representation: rather, the interests the Protecting Power is asked to safeguard must specifically be the interests of a Party to the conflict to see its nationals in enemy hands treated in accordance with applicable standards of international humanitarian law, and probably also, to a certain extent, with their own customs and culture. Paragraphs 2 and 3 of Article 5 lay down detailed procedures designed to facilitate the “designation and acceptance” of Protecting Powers. If all this remains without result, it is the turn of a “substitute”: as defined in Article 2(d), this “means an organization acting in place of a Protecting Power in accordance with Article 5.” Article 5(4) points out how this may be brought about: the ICRC or “any other organization which offers all guarantees of impartiality and efficacy” may “after due consultations with [the Parties to the conflict] and taking into account the result of these consultations”, offer to the said Parties to act as a substitute. If, after such thorough preparation, the organization makes an offer, “the Parties to the conflict shall accept [it] without delay.” One difference between the mode of acting of a Protecting Power and a substitute such as the ICRC is that, while the former is obliged to safeguard in particular the interests of the Party to the conflict it represents, the emphasis in respect of the substitute is on its impartiality. For an organization like the ICRC, it is evident that it will focus first and foremost on the interests of the victims of the conflict. A practical problem attending the possible activities of Protecting Powers is that in order to carry out their supervisory functions, they need to have at their disposal sufficient qualified personnel. Article 6 aims to ensure that the Parties to the Protocol will already in peacetime do the necessary to train such personnel. What can be expected of the supervision by Protecting Powers or their substitute? On the one hand, it seems reasonable to expect that they will effectively supervise conditions in places where wounded and sick, prisoners of war or civilian internees are being kept or set to work, or the health situation and provision with essential foodstuffs of a civilian population in occupied territory. On the other hand, any supervisory activities on the part of a Protecting Power or substitute with respect to combat activities proper and the rules applying in that context between combatants can be accidental and indirect at best. Thus, it does not normally fall within the functions of a Protecting Power to investigate whether an attack has been carried out according to the rules. An exception to this general statement should perhaps be made in respect of the use of chemical weapons: as past experience goes to show, the traces of such use may sometimes be found

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in the target area, and this can be done equally well by delegates of a Protecting Power or a substitute as by anyone else. The Hague Convention of 1954 on the Protection of cultural Property contains a system, comparable to that of the Geneva Conventions, of co-operation and assistance in the application of the Convention and the annexed Regulations. The system includes the co-operation of Protecting Powers and assigns a particularly important role to UNESCO. 4.4

Role of the International Community of States

The obligations of States deriving from the various humanitarian treaties to which they are parties may be regarded, in the famous phrase of the International Court of Justice, as obligations “towards the international community as a whole.” The Court adds that: By their very nature [these obligations] are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection: they are obligations erga omnes.

This “legal interest” of the international community in seeing the rules of humanitarian law respected is recognized in Article 1 common to the Geneva Conventions of 1949, whereby “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances” (my emphasis). Article 1(1) of Protocol I repeats the same formula. It is widely accepted that the phrase “to ensure respect” has the effect, inter alia, of empowering third States to raise their voice against apparent violations of humanitarian law, committed by Parties to an armed conflict. This may take the form of a discreet individual or collective diplomatic démarche, or of a public denouncement of the incriminating practices. States may take such steps, either at the request of the ICRC, or of their own accord. One form of collective protest is to embody it, say, in a resolution of the General Assembly of the United Nations. Such resolutions have frequently been voted in the past. Recourse to the United Nations has found a somewhat different place in Protocol I. Article 89 provides that: In situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in co36 37

Arts. 21-23 of the Convention, Chapter I of the Regulations. ICJ Reports 1970, p. 3: Judgment of 5 February 1970 in the Barcelona Traction case, 2nd phase.

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operation with the United Nations and in conformity with the United Nations Charter.

As noted by Karl Joseph Partsch, this rather unclear provision: is the only remnant of long discussions regarding the problem of a provision on the general prohibition or limitation of reprisals or similar countermeasures taken by the victim of serious breaches in order to compel the Party violating its obligations to cease doing so.

As such, the Article is probably a failure. At the same time, the reference to High Contracting Parties, rather than Parties to the conflict, gives the provision a broader scope, so that it can be utilized as a basis for initiatives to discuss and, as appropriate, condemn particular violations committed by Parties to a conflict. International concern with the application of the rules of humanitarian law is also reflected in Article 7 of the Protocol. This Article provides that the depositary of the Protocol (i.e., the Swiss Government) “shall convene a meeting of the High Contracting Parties, at the request of one or more of the said Parties and upon the approval of the majority of the said Parties, to consider general problems concerning the application of the Conventions and of the Protocol.” The reference in this text to “general problems” makes clear that the purpose of such a meeting would not be to examine and expose specific alleged violations of the Conventions and the Protocol. Yet delegates at such a meeting might wish to illustrate the “general problems concerning the application” on the agenda with specific examples, and in practice it might prove difficult to distinguish such specific examples from direct accusations. Thus far, Article 7 has not led to any practical experience. It remains to be seen whether it is ever going to be applied, and if so, with what results. A final remark concerns an interesting idea, brought up in the course of the discussions at the Centre for Studies and Research. In view of the close relationship between humanitarian law and the law of human rights, could not international bodies competent in the field of human rights exert supervisory functions with respect to humanitarian law as well? The idea was brought up by a participant, Ms. Christina M. Cerna, who is attached as a lawyer to the staff of the Inter-American Commission on Human Rights. It is, of course, far from self-evident that human rights bodies could claim such a competence, which probably will lie beyond the strict confines of their constitutive instruments. Yet the idea is not entirely hopeless either, and certainly deserves to be explored further: as pointed out as the outset of this paper, the level of respect for humanitarian law in current armed conflicts leaves very much to 38

Karl Joseph Partsch, writing the commentary to Art. 89 in Bothe, Partsch and Solf, op. cit. note 12.

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be desired. In this situation, every possible means to promote such respect must be mobilized. 5

Conclusion

As the above survey may have shown, a wealth of means and methods are available for the promotion of respect for humanitarian law. The relevant rules are scattered over the various international instruments in force. Yet the greatest present need is not for a codification or thorough shake-up of the law on implementation and enforcement of humanitarian law: rather, States, both individually and collectively, in their various forms of more or less organized co-operation, must simply do more effectively and energetically what they have solemnly undertaken to do. To achieve this, persistent efforts are necessary to awaken responsible authorities to their duties in this regard; duties, it may be added, that are farther removed from their consciousness yet easier to discharge in time of peace than in the turbulent time of armed conflict. The Red Cross and Red Crescent Movement, by virtue of its origin and mission probably more than other organizations acutely aware of this need, started a Programme of Action on the Dissemination of International Humanitarian Law and the Principles and Ideals of the Red Cross. In this endeavour, it deserves all our support.

Chapter 28 Instructions for the Armed Forces*

1

Introduction

From the vantage point of the international lawyer, the obligation to implement the rules and principles of the international law of armed conflict rests squarely on the State, in its quality as a subject of international law. To discharge its duties in this respect, a variety of means are at its disposal, such as: measures of a legislative order, including instructions for the armed forces; programmes for the dissemination of knowledge of the law; recruitment and training of qualified personnel, inter alia as legal advisers to or in the armed forces; establishment and maintenance of a disciplinary system suitable to enforce compliance with the applicable rules of international humanitarian law; and, last but not least, repression of violations. The need for a State to implement its obligations under the international law of armed conflict assumes real urgency once it is actually involved in such a conflict. This applies to its primary obligations (to keep prisoners alive, not to mount attacks against the civilian population or civilian objects, etc.) as much as to those of a secondary nature; and in the latter category fall the national measures of application. Yet for these measures to have their full effect in time of armed conflict they must have been prepared in time of peace. The treaties in force recognize this in a number of places. The requirement of peacetime preparation for what often may be perceived as a rather far-fetched eventuality may be expected to receive scant attention in those developing States whose legislative and executive branches are more than fully occupied with the many pressing problems arising from their recently acquired independence. It is painfully obvious, however, that quite a few developed States which have no such excuse, are equally inclined to regard the taking of measures for the implementation of the law of armed conflict as a job that can be postponed till such time as the need becomes really acute. In either case, it is necessary constantly to remind States of their obligations in this regard.

*

Paper read at a conference of the International Society of Military Law and the Law of War, and published earlier in 28 Military Law and Law of War Review (1989) pp. 315-325.

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The focus of this paper is primarily on instructions for the armed forces, as a means to bring the abstract rules and principles of the international law of armed conflict to bear on the concrete events of war by influencing the behaviour of those many individuals who, as members of the armed forces, may be required to cope with the variegated reality of the conduct of war. 2

Practice and Law

How widely these realities may differ need not be explained to the members of this society, many of whom are experienced professional soldiers. Take the diverse theatres of war, land, sea, air, and space; the types of engagement, from hand-tohand combat to the missile attack on an invisible target; the differences in environment: day or night; clear or fog; desert, jungle or the streets of an old city; the open ocean or an enclosed sea like the Persian Gulf. Military tactics must be adapted to every new situation and military behaviour adjusted accordingly. As if all this were not enough, matters are complicated further when, as so often happens, the character of the situation remains unclear: is it an armed conflict and, if so, an international or internal one? Is one’s State a party to the conflict, or is it neutral? Again, do certain acts of violence represent (lawful or unlawful) acts of war, or are they criminal acts of terrorism, committed outside the scope of the law of armed conflict? The question may be asked whether the law cannot be adapted to this multifaceted reality: could it not, like military tactics, be made to reflect the needs of the various types of situation? Sure enough, as recently as the 1970s, at the drafting stage of the Additional Protocols, hopes were entertained in some quarters that it would prove possible to couch the rules in these instruments in unambiguous language, readily applicable by the military. It needs little reflection, though, to realize that no set of internationally agreed rules for the conduct of armed conflict could ever be devised that would provide ready-made solutions for each and every concrete instance that may arise in practice. As any other body of law, the international law of armed conflict can do no more than provide generalized, more or less abstract rules of conduct which focus on select features of possible situations. Even so, it is quite possible for given rules to be eminently suitable for direct application by the military, if not at the level of the private soldier, then at least at that of responsible command. Whether this is in effect the case with respect to this or the other rule may be a matter of some controversy, though. 3

Rules of Treaty Law as Model Instructions?

One way to decide the issue is for a State to lay down what it regards as the applicable rules of international law in instructions for the armed forces. An early and rightly famous example is provided by the Instructions for the Government

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of Armies of the United States in the Field. Promulgated on 24 April 1863 by President Lincoln as General Orders No. 100 but better known as the Lieber Instructions, this document served as a field manual for the armed forces of the United States, the then northern party in the Civil War. In 1863, treaties on the law of armed conflict were still entirely lacking, and the Lieber Instructions represented a careful reflection of existing norms of customary law on the conduct of war. Soon thereafter a body of treaty law of war began to develop, beginning with the Geneva Convention of 1864 and the St. Petersburg Declaration of 1868. After the abortive Brussels Declaration of 1874, a particularly significant result was the adoption in 1899, by the Hague Peace Conference, of the Hague Convention (II) with, annexed to it, the Regulations Respecting the Laws and Customs of War on Land. The Hague Regulations deserve our special attention. As the agreed outcome of a legislative process in an international conference of State representatives, they purport to lay internationally binding obligations on the contracting States. At the same time, the very first obligation, set out in Article 1 of the Convention, is for contracting States to “issue instructions to their armed forces, which shall be in conformity with” the said Regulations. In other words, the hope may have been that the Regulations might serve, not only as an instrument of binding treaty law but as a sort of model Instructions on the conduct of land warfare. A perusal of the Regulations soon makes clear that, while some rules might indeed have been copied almost verbatim into the national instructions for the armed forces of the time, a number of other rules were decidedly unsuited to such a simple operation. One wonders, for instance, what a commanding officer could have made of an instruction echoing the statement in Article 22, that “The right of belligerents to adopt means of injuring the enemy is not unlimited.” On the other hand, our commander might have had less difficulty with a fairly precise prohibition to “employ poison or poisoned arms”, or to “kill or wound an enemy who … has surrendered at discretion” (Art. 23(a, c)). But his capacity to appreciate legal niceties might again have been heavily taxed by provisions such as the ones blandly prohibiting treacherous killing while permitting ruses of war (Arts. 23(b) and 24). And these few examples could easily be multiplied. Nor is this all: as model instructions, the Regulations were hopelessly incomplete. Thus, among the list of prohibited means of injuring the enemy, one looks in vain for the light-weight explosive projectiles of the St. Petersburg Declaration; for the “projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases” of Hague Declaration IV-2 of 1899, or for the “bullets which expand or flatten easily in the human body” (the famous dum-dum bullets) of Declaration IV-3 of the same date. And for a very important subject matter, the

1 2

Schindler & Toman, The Laws of Armed Conflicts, 2nd ed. (1981), p. 3. Op. cit., p. 57.

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obligations with regard to the sick and wounded, Article 21 simply refers the user to the Geneva Convention of 1864. The Hague Regulations, in short, were largely unsuited to serve as model instructions for the armed forces; far more unsuited, in effect, than the so-called Oxford Manual, published in 1880 by the private Institute of International Law as a manual on the laws of war on land and which its learned authors had with some right regarded, in the words of the preface, as “suitable as the basis for national legislation in each State.” A peculiar counter-point to the Hague Regulations may be seen in the 1909 London Declaration Concerning the Laws of Naval War. Many of its provisions are clearly and plainly phrased, as if they had been intended as model instructions for the naval forces. Despite this fact, and although the preamble expressed “the desire to ensure henceforward a greater measure of uniformity” in the methods of naval warfare, its primary purpose actually lay elsewhere: it was to provide the projected international Prize Court that would sit as a court of appeal from the judgments of national prize courts, with a set of internationally agreed standards for the decision of its cases. A strange situation: while far more suitable as model instructions than the Hague Regulations on Land Warfare had ever been, the Declaration of London was never intended for that purpose. As well, the Declaration remained sadly non-ratified, as did in consequence the Hague Convention (XII) of 1907 Relative to the Creation of an International Prize Court. With respect to the long list of treaties that came to enrich the body of the law of armed conflict in later years, it may just be noted that these had less and less the character of model instructions for the armed forces and, on the contrary, ever more provides general, more or less abstractly phrased rules spelling out international obligations of the contracting States. This conclusion applies without reserve to the most recent additions to the series: the Additional Protocols of 1977 and the UN Conventional Weapons Convention of 1980 with its annexed Protocols. As was only to be expected, the hope that the Protocols would be couched in unambiguous terms remained vain. For one thing, such an ambition was irreconcilable to another objective of the exercise, strongly underscored, for instance, by the Minister for Foreign Affairs of the Netherlands, that the outcome of the negotiations should be acceptable as widely as possible. Obviously, the requirement of wide acceptability, with its built-in need for vagueness and compromise, was completely at variance with the desire for clear, unambiguous language. And to the extent that a straightforward, uncomplicated text might occasionally have appeared acceptable, say, 3 4 5

Op. cit., p. 35. Op. cit., p. 737 (Convention XII), p. 757 (Declaration of London). Op. cit., p. 551 (Protocol I), p. 619 (Protocol II); Roberts & Guelff, Documents on the Laws of War (1982), p. 467 (Weapons Convention).

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to the military, there were always the lawyers who spoiled the game by pointing out the dangers that lurked in every dark corner of such an ostensibly innocuous text; dangers that could only be overcome by redrafting it into more precise legal terms – which of course would also be more complex and less clear. 4 “Translation” of International Rules into Instructions for Armed Forces The upshot of the foregoing is that the need for a “translation” of the internationally agreed rules of the law of armed conflict into national instructions for the armed forces is greater than ever. At the same time the armed forces, in particular those of developed, highly industrialized States have become ever more complex and sophisticated organizations with a high degree of specialization for their various branches. The job of translating the law into meaningful instructions has become commensurately more difficult. That it is and remains an obligation of States is beyond question, witness Article 80(2) of Protocol I: The High Contracting Parties and the Parties to the conflict shall give orders and instructions to ensure observance of the Conventions and this Protocol, and shall supervise their execution.

Curiously, a similar provision is lacking in the UN Conventional Weapons Convention of 1980. But then, this is not the only desirable element lacking in this Convention. In effect, Article 6 merely requires wide dissemination and, in particular, to include the study of the Convention and its annexed Protocols in the programmes of military instruction, “so that those instruments may become known to their armed forces.” Nonetheless, nothing prevents a contracting State from effectively incorporating the relevant parts of the Convention and, more importantly, of the Protocols in instructions for its armed forces. To whom will befall this job of “translating” the rules of international law into instructions for the military? As in the case of the Lieber Instructions, it might well be a collective effort: while Lieber was their principal author, the instructions were promulgated only after they had been scrutinized, revised and finally approved by a board of officers. For the present, one may hope and expect that qualified lawyers, whether military or otherwise, will take a part in the process. It may be noted here that Article 82 of Protocol I requires the availability of legal advisers, inter alia, “to advise military commanders at the appropriate level on the application of the Conventions and this Protocol.” While there may be room for different views as to the lowest level where legal advisers could still be usefully employed, there can be no doubt that they are indispensable at the very superior level where instructions for the armed forces will normally be conceived. When will instructions be issued? One possibility is for this to be done with a view to an ongoing armed conflict which the armed forces are actually engaged

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in. As noted before, this was the case with the Lieber Instructions. Another, quite recent example is provided by the Code of Conduct for the National Resistance Army, the armed forces of the National Resistance Movement of Museveni in Uganda. The Code was drawn up in March 1982 for what at the time was an opposition party in an internal armed conflict and in effect on the march to the capital, and it was subsequently published officially in 1986, after the Movement had established itself as the governing power in the country. It is of interest to note that the Code goes to great lengths to ensure a high standard of discipline among the members of the NRA, as well as a proper level of protection of the “public”: i.e., the non-participating civilian population. With respect to the adversary, the main prescription was never to kill captured enemies, “as the guns should only be reserved for armed enemies or opponents” – a sound advice from every point of view. The more likely case, though, is for instructions to be issued in time of peace and, consequently, not with a view to the particularities of a particular armed conflict. The implication is that the instructions must be capable of being applied in a variety of situations. It may be asked whether there is perhaps a need for two sets of instructions: one for international armed conflicts and another for internal armed conflicts. After all, the treaties in force recognize this distinction since 1949, and the rules applicable in the former type of armed conflict are immeasurably more elaborate and in part even quite different to those applicable in the latter. Yet this appears a rather implausible solution. The presumption underlying the training of armed forces is normally a situation of international armed conflict, and to differentiate between international and internal conflicts in the instructions seems as impracticable as it would be in the general training programmes. It is worth noting here that the recent Commander’s Handbook on the Law of Naval Operations, issued by the Department of the U.S. Navy and promulgated in July 1987 as Naval Warfare Publication 9, refers throughout to “armed conflict” without further specification. From the text of Part II, on the Law of Naval Warfare, it is abundantly clear that the situations envisaged there fall in the category of international armed conflicts. What can be said about the required contents of instructions for the armed forces? The difficulty here is, of course, that there is not just one type of armed force. More specifically, there is a world of difference between Museveni’s National Resistance Army and the U.S. Navy: the one, a fairly unsophisticated, single-purpose guerrilla army; the other, a complex, technologically incredibly sophisticated naval force with tasks as diverse as the oceans are wide. This gigantic difference is clearly reflected by these two Codes: the Code of Conduct for the NRA and the Commander’s Handbook for the U.S. Navy. The 6

The Code of Conduct was published by the Ugandan authorities in Legal Notice No. 6 of 1986.

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short NRA Code (far shorter, in effect, than its illustrious predecessor, the Lieber Instructions) provides in just a few articles a complete set of instructions for the conduct of NRA members. The U.S. Navy Commander’s Handbook, in contrast, is long, complicated, full of cross-references, and purports to deal with the law relating to naval operations – rather than with the operations themselves: it is a handbook, not a code of conduct. This is to say that for specific operations, special instructions will have to be issued: the so-called “rules of engagement”. To gain an insight into the degree of conformity of the U.S. Navy’s preferred conduct of operations with the applicable law it is not sufficient, therefore, to read the Handbook: one ought to consult the rules of engagement as well. Here the slight difficulty arises that the authorities tend to keep the latter rules classified. Fortunately, they sometimes become more or less public, by the force of events or the efforts of inquisitive journalists. Yet, the Commander’s Handbook makes fascinating reading by itself, and this for a number of reasons. One is a feeling of surprise at the broad scope of Part 11 on the Law of Naval Warfare: contrary to what one might perhaps expect, it deals at least as much with matters of war on land as with naval warfare. This probably is a consequence of the great diversity of tasks naval units, including the marines, may be ordered to perform. Another interesting aspect of the Handbook, directly connected with its broad scope, is that it represents the first official U.S. text on the law of armed conflict since the letter of 29 January 1987, by which the President transmitted Additional Protocol II to the Senate, together with his conclusion that the United States should not ratify Protocol I. The interesting point is to see how the authors of the Handbook have gone about translating their (positive or negative) views on the various rules of Protocol I into instructions for the navy. As is well-known, the present administration does not reject the Protocol in its entirety: it regards a good many rules as customary law and some other ones as positive developments; what remains is a fairly limited number of rules that are rejected outright, as undesirable attempts at “politicization of [traditional humanitarian law] by groups that employ terrorist practices” – to quote the closing words of the President’s letter to the Senate. Obviously, in spite of its length, the Handbook can be no more than a summary of the existing law: it abbreviates texts, selecting what it considers most essential. At the same time, it often adds its own explanations and interpretations, ostensibly to make the texts more readily digestible to naval commanders. This is of course often necessary, in view of the convoluted language of many treaty provisions. Sometimes, however, interpretation results in modification, and then not always in a desirable direction. Thus, the Handbook tends unacceptably to water down the rules on general protection of the civilian population.

7

100th Congress, 1st Session: Senate, Treaty Doc. 100-2.

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To give just one example: Article 51(3) of Protocol I incorporates the customary rule that “Civilians shall enjoy the protection of this Section unless and for such time as they take a direct part in hostilities.” Ostensibly reflecting this provision, Section 11.3, para. 2 of the Handbook construes the crucial phrase “direct part in hostilities” as “taking up arms or otherwise trying to kill, injure, or capture enemy persons or destroy enemy property.” Taking up arms: this is all right. Otherwise trying to kill, injure, or capture enemy persons: this will already depend on the situation. Destruction of enemy property: this is altogether too broad and vague to be acceptable. As the point at issue here is the essential one of whether a civilian may or may not be made the object of attack, the cavalier interpretation in the Handbook is open to the strongest criticism, as are certain other paragraphs determining the fate of the civilian population. Thus, while a document such as the Commander’s Handbook represents an indispensable tool for the translation of the law of armed conflict into national instructions for the armed forces, the dangers inherent in the process are obvious. Instructions of this type should therefore always be unclassified (as the Handbook is). In that manner, critical comments may be hoped to lead to an improved version, as close as possible to the terms and spirit of the law while at the same time applicable in military practice. A few words, finally, about the bottom level of instructions to the military, i.e., the rules of engagement. While these serve an operational purpose in the first place, they must also be in conformity with the applicable law of armed conflict. Even then, the results may be disastrous, witness the recent events in the Gulf. Here, the U.S. Navy saw itself confronted with every imaginable difficulty: a hostile environment, uncertainty as to the own neutrality, a task that gradually shifted from mere presence to wider and more direct involvement, personnel with little battle experience and an equipment and weaponry that might perhaps be regarded as technologically over-sophisticated in the circumstances. The results we all know: the U.S.S. Stark took heavy damage from a hit by an Exocet missile, launched by an Iraqi Mirage, this although, as the report of the House Committee on Armed Services notes: “The Rules of Engagement issued by the Commander of the [Middle East Force] on October 1, 1985, provide sufficient authority to U.S. ship commanders to respond to the threat of attack by hostile air craft.” Apparently, the commander and his crew had simply neglected to respond to the threat as the law would have permitted them to do. And a little while later, the U.S.S. Vincennes did the reverse: responding to what by a misreading of the available information was perceived as an imminent threat, it shot down an Iranian civilian aircraft, killing the 290 passengers and crew: an act the law does its utmost to prevent. This leads to a concluding remark. The international law of armed conflict may lay down desirable norms for the conduct of hostilities; national authorities may translate the internationally agreed norms more or less faithfully into codes of conduct, rules of engagement or however the instructions for their armed

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forces may be styled; but decisive remains the human element: where this fails, the law is powerless. It is a reassuring thought that fortunately, the human element does not always fail; and at all events, the need for instructions for the armed forces continues unabated.

Chapter 29 Individual Right to Claim Damages under Article 3 of Hague Convention IV: Expert Opinion, 1997 *

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Binding Force and Applicability of Hague Convention IV

Prior to entering into the question of the right interpretation of Article 3 of the Convention (IV) Respecting the Laws and Customs of War on Land, signed at The Hague, 18 October 1907 (hereafter: the Convention), some brief comments about two points of a more general nature are in order. The points concern the question whether the Convention as a whole was binding on Japan at the time of the Second World War, and whether it was applicable to that country as a party to that armed conflict. As argued below, both questions must be answered in the affirmative. That the Convention was indeed binding on Japan in the specified period of time follows, first, from its ratification by the Japanese Government on 13 December 1911. By that act Japan expressed its consent to be bound by the Convention. (The fact that it did accompany its ratification with a reservation of Article 44 of the Regulations annexed to the Convention is of no relevance in the present context.) A second ground why the Convention was binding on Japan at the time of the Second World War is because by that time the Convention had become part and parcel of the body of international customary law governing the conduct of war on land, including the rules relating to the occupation of enemy territory. This point was made explicit in the Judgments of the International Military Tribunals of Nuremberg (1946) and Tokyo (1948). The Nuremberg Tribunal dealt with the matter in connection with an argument that had been raised by counsel for the defence. The argument was that the general participation clause in Article 2 made the Convention inapplicable in the cases before the Tribunal. That clause read as follows: *

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Expert Opinion submitted in 1997 to the Tokyo District Court, Japan, in Dutch POW and civilian detainees cases as well as in Philippine “comfort women” cases; published earlier in Hisakazu Fujita, Isomi Suzuki and Kantaro Nagano (eds.), War and the Rights of Individuals: Renaissance of Individual Compensation (1999) pp. 3148. In the original French: “Les dispositions contenues dans le Règlement visé à l’article 1er ainsi que dans la présente Convention, ne sont applicables qu’entre les Puissances contractantes et seulement si les belligérants sont tous parties à la Convention.”

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Chapter 29 The provisions contained in the Regulations [on Land Warfare], as well as in the present Convention, do not apply except between contracting Powers, and then only if all the belligerents are parties to the Convention.

In effect, not all the States that participated as belligerents in the Second World War were also parties to the Convention. Nevertheless, the Nuremberg Tribunal rejected the argument based on this clause, on the following grounds: The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing international law at the time of their adoption. But the Convention expressly stated that it was an attempt “to revise the general laws and customs of war”, which it thus recognized to be then existing, but by 1939 these rules laid down in the Convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war which are referred to [in the Charter of the Tribunal].

In a similar vein, the Tokyo International Tribunal under the heading “Laws of Belligerency” argued that a series of treaties concluded between 1907 and 1929 “not only impose direct treaty obligations upon the Contracting Powers, but also delineate more precisely the customary law.” Elaborating this point, it continued: The effectiveness of some of the Conventions signed at The Hague on 18 October 1907 as direct treaty obligations was considerably impaired by the incorporation of a so-called “general participation clause” in them, providing that the Convention would be binding only if all the Belligerents were parties to it. The effect of this clause is, in strict law, to deprive some of the Conventions of their binding force as direct treaty obligations, either from the beginning of a war or in the course of it as soon as a non-signatory Power, however insignificant, joins the ranks of the Belligerents. Although the obligation to observe the provisions of the Convention may be swept away by operation of the “general participation clause”, or otherwise, the Convention remains a good evidence of the customary law of nations, to be considered by the Tribunal along with all other available evidence in determining the customary law to be applied in any given situation.

Further on in its Judgment, under the heading “Fourth Hague Convention”, the Tribunal explicitly confirmed that what it had said earlier about the “general participation clause” applied to this Convention as well. The legal opinion expressed in either of these Judgments, that at the time of the Second World War the Convention could be regarded as belonging to the body of customary international law has since been accepted generally, both in State practice and in legal literature, and it may be regarded as uncontested today.

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Furthermore, also after the termination of the Second World War and up to the present day Japan has continued to be bound by the Convention, first of all as treaty law by virtue of its ratification in 1911; but also, hardly less important, because of the Convention’s character as an authoritative statement of the customary international laws of war. The latter point may be demonstrated with a reference to the Advisory Opinion of the International Court of Justice of 8 July 1996 on the Legality of the Threat or Use of Nuclear Weapons. In this Advisory Opinion, rendered on the request of the UN General Assembly, the Court referred with apparent approval to the Judgment of the Nuremberg Tribunal, as well as to the Report of the UN Secretary-General introducing the Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. The latter Report of the Secretary-General, unanimously approved by the Security Council in its resolution 827 (1993), lists the Convention under the “part of conventional international humanitarian law which has beyond doubt become part of international customary law.” The Court itself in its Advisory Opinion refers to the fundamental rules, codified inter alia in the Convention, as “intransgressible principles of international customary law” (paras. 79-81). All of this leaves open the possibility of subsequent changes in the law, whether by virtue of the conclusion and entry into force of new treaties to which Japan has become party, or by the emergence of new rules of generally applicable customary international law applicable in armed conflicts. In this connection, reference should be made to the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977. This Protocol doubtless reflects changes in the international law of armed conflict, mostly in the shape of improvements and clarifications. It is generally agreed that a considerable portion of the rules laid down in the Protocol are no more than a codification of pre-existing customary law. As such, those rules are binding on Japan as on all other countries, this even though Japan to this day has not become a party to the Protocol. Article 3 is part and parcel of the Convention. The ratification by Japan included this Article on the same footing as the rest of the Convention. There is, moreover, nothing that excluded it from the general recognition of the Convention as declaratory of customary international law. Hence, the Article was and is binding on Japan, once again, subject to any changes in the law that might have occurred since its adoption in 1907. In this connection, mention should be made of the fact that Protocol I of 1977 contains a provision (Art. 91) which repeats verbatim the text of Article 3 of the Convention. The effects hereof, as

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Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports (1996) p. 226.

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well as other questions relating to the implications of Article 3 for the present case (such as its possible self-executing character) will be discussed below. The other preliminary point concerns the applicability of the Convention in the present case. The Convention does not contain any provision specifying from what moment it is applicable nor when it ceases to be applicable. From its terms and purpose it is evident, however, that it is designed to be applied by “belligerents” or “belligerent Powers” who are waging a “war”. In other, somewhat more modern terms, it may be deemed to be applicable in international armed conflicts, that is to say, armed conflicts between States. There can be no doubt that the Second World War was such an armed conflict. It is equally clear that Japan and its opponents in that war were “belligerent Powers” in the sense of the Convention. Both the Convention and, in particular, Article 3 were therefore applicable to Japan as a belligerent Power participating in the Second World War, as well as, obviously, to the conduct of its armed forces in the course of military operations and during situations of occupation. 2 The Purpose of Article 3 Article 3 of the Convention reads as follows: A belligerent party which violates the provisions of the said Regulations [i.e., the Regulations on Land Warfare annexed to the Convention] shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.

It is submitted that the purpose of the Article has been from the outset, first, to reaffirm the pre-existing customary rule of responsibility of a belligerent State for all acts committed by members of its armed forces in violation of the laws of war; and, second, to put beyond question that any such violations render such a belligerent party liable to pay compensation to the individual victims of the violations. Evidence supporting this submission is found in the drafting history of Article 3. As set forth elsewhere, the Article was introduced into the Convention in 1907 to cover a perceived lacuna in the earlier Convention with annexed Regulations of 1899. In effect, neither the 1899 Convention (II) with Respect to the Laws and Customs of War on Land (which preceded the 1907 Convention IV) nor the 3

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In the original French: “La Partie belligérante qui violerait les dispositions dudit Règlement sera tenu à indemnité, s’il y a lieu. Elle sera responsable de tous actes commis par les personnes faisant partie de sa force armée.” Frits Kalshoven, “State Responsibility for Warlike Acts of the Armed Forces”, in 40 ICLQ (1991) pp. 827-858.

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Regulations annexed thereto contained any provision on the responsibility of belligerent States for acts of members of their armed forces violating any of the rules embodied in the Regulations. On the other hand, Section III of the Regulations, “On military authority over hostile territory” (that is, the law relating to occupation), contains several provisions of relevance here. Thus, Article 52 lays down that permissible requisitions in kind and services “from communes or inhabitants … shall, as far as possible, be paid for in ready money; if not, their receipt shall be acknowledged.” Then, Article 53 lists “railway plant, land telegraphs, telephones, steamers and other ships … even though belonging to companies or to private persons,” among the objects an army of occupation may requisition as “material which may serve for military operations,” but it specifies that “they must be restored at the conclusion of peace, and indemnities paid for them.” Again, Article 56 lays down that “The property of communes, that of religious, charitable, and educational institutions, and those of arts and science, even when State property, shall be treated as private property.” And, as-it-were drawing the consequence from this statement of principle, it goes on to provide that “All seizure of, and destruction, or intentional damage done to such institutions, to historical monuments, works of art or science, is prohibited, and should be made the subject of proceedings.” Article 56 differs from the provisions in Articles 52 and 53 in that it explicitly attaches legal consequences to acts that are marked as “prohibited” and, hence, branded as violations of the rules (which, as such, must be prosecuted). Both Articles 52 and 53, in contrast, deal with activities of an occupying power that are not necessarily prohibited but nonetheless are of a nature to cause damage, among others, to private persons; and the Articles therefore provide that these persons should be indemnified by the occupying power. All of these provisions suffered from two defects. For one thing, they were too specific, each covering just one particular class of cases. For another, they were rather vague as regarded the actual methods of payment of the indemnities to the persons entitled to receive them. In effect, these defects were evidence of a more general lacuna in the Convention and Regulations of 1899, viz., its nearcomplete silence on measures of implementation. The only provision on implementation was found in Article 1 of the Convention, requiring contracting States to “issue instructions to their armed forces, which shall be in conformity with the ‘Regulations respecting the laws and customs of war on land’ annexed to the present Convention.”

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Art. 56 in its original French version reads as follows: “Les biens de communes, ceux des établissements consacrés aux cultes, à la charité et à l’instruction, aux arts et aux sciences, même appartenant à l’Etat, seront traités comme la propriété privée. Toute saisie, destruction ou dégradation intentionnelle de semblables établissements, de monuments historiques, d’oeuvres d’art et de science, est interdite et doit être poursuivie.”

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The Second Hague Peace Conference, 1907, provided the opportunity to mend some of these perceived defects. Article 52, on requisitions in kind and services, was changed slightly by the addition at the end of the Article that “the payment of the amount due shall be made as soon as possible.” The evident purport of this addition was that in any occupation of some duration, payment of these relatively minor and straightforward debts should be made during the occupation and not be postponed to the conclusion of peace. This in contrast with the case of telegraphs, telephones, and similar movable objects: although the language of Article 53 was modified in certain respects, a point that remained unchanged was that these objects “must be restored and compensation fixed when peace is made.” However, this was no more than logical, since the amount of compensation could only be determined once the use of the objects in question had come to an end. As regards Article 56, although this had been left unchanged by the Conference, the English translation produced afterwards (and which, even though not authoritative, in practice was at least as influential as the original French) rephrased its closing term “proceedings” into “legal proceedings”. This gave clear expression to the understanding that acts in violation of the rules of Article 56 were not a matter to be left to the discretion – and overwhelming force – of the occupying authorities but required a procedure based on considerations of justice. All of these amendments and changes implied no more than minor improvements over the rules codified in 1899. A much more significant improvement, of general importance for the whole of the laws of war, resulted from an initiative by the German delegation to the Conference. The purpose of the original proposal, as explained by the German delegate, was to clarify the legal situation with respect to any violations of the Regulations, no matter whether committed in occupied territory or elsewhere. It specified that a belligerent State was responsible for all such acts committed by members of its armed forces, and it required the belligerent party concerned to indemnify those individual persons who had suffered any detriment as a consequence of the acts in violation of the rules. In the original proposal a distinction was drawn, ostensibly on nothing but practical grounds relating to the method and moment of payment, between neutral persons (who should be indemnified as soon as possible) and persons belonging to the adverse party (with their indemnification to be settled on the conclusion of peace). Yet the Conference did not hesitate to reject this distinction, on the grounds that it appeared to introduce an unacceptable element of favouring neutral persons over persons belonging to the adverse party.

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The reference to “legal proceedings” actually implied a return to the language used in the English version of Art. 8 of the Declaration of Brussels, 1874, which was a forerunner of the 1899 Hague Convention.

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On the other hand, the twin principles of responsibility of belligerent parties for acts in violation of the Regulations and indemnification of the individual victims of such acts were never a matter of controversy at the Conference, and it is these two principles which one finds incorporated in the text of Article 3 as ultimately adopted. According to the British Professor of International Law and highly qualified publicist, Georg Schwarzenberger the principle of compensation as stated in the first sentence of Article 3 was “declaratory of international customary law as it stood in 1907.” The question might perhaps be raised whether the same could be said with equal force of the principle of responsibility in the second sentence. In this regard, it is worthy of note that in the report of the Second Commission of the Conference (which had discussed the amendments to the Convention and, with that, the German proposal which ultimately found its way into the Convention in the shape of Art. 3), the incorporation of the principle into the Convention is explained as an extension “to the Law of Nations … of the principle of Private Law according to which the master is responsible for his subordinates or agents.” While this may at first sight look like a suspect case of reasoning by analogy and hence as an introduction into international law of a novel element not previously belonging there, it is submitted that this would be attributing too much consequence to the language in the report of the Second Commission. A more appropriate interpretation is that the Commission merely used the analogy by way of illustration of its recognition of the principle of responsibility as an existing general principle of law, applicable on the international level on the same footing as it was applicable on the national level. The only novelty, in other words, was that in 1907 the principle was for the first time expressed in so many words in a treaty. Of course, even if all this was otherwise and the principle of responsibility were regarded as new treaty law introduced in 1907, there remains the fact that almost half a century later, by the time of the Second World War, it had been incorporated into the body of international customary law together with the rest of the Convention. Another thirty years later, the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (1974-1977) adopted the aforementioned Protocol I Additional to the Geneva Conventions of 1949. Article 91 of that Protocol contains a slightly modernized version of Article 3 of 1907. The differences with the older text are 7 8

G. Schwarzenberger, International Law as Applied by International Courts and Tribunals, The Law of Armed Conflict, Vol. II (1968) p. 448. Although Schwarzenberger does not state so explicitly, it is evident from the context that the principle of compensation he referred to was that of compensation to individual victims.

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immaterial in the present context. The only point to be made here is that the Conference in 1977 accepted Article 91 as a matter of course, without much discussion and without any dissent. The vote, in other words, reflected and indeed reaffirmed the general acceptance of the contents of the Article as established customary law. 3

Rights of Persons Resident in Occupied Territory to Claim Compensation for Damages Suffered from Acts of Members of the Occupying Force in Violation of the Laws of War

As set forth in the previous section, the German proposal that led to the adoption of Article 3 had been introduced in the course of a discussion in the Second Commission of the Conference of 1907 on amendments to certain provisions of the 1899 Hague Regulations relating to the rights and duties of an occupying power. The German proposal was broader than these earlier provisions in that it was designed to apply to all violations of the Regulations, no matter where committed. Accepting this feature of the proposal but with significant changes to its text, the Conference ultimately incorporated the Article not in the Regulations annexed to the Convention but in the body of the Convention itself. While doing so, the Conference does not appear to have paid any attention to the implications of this broadening of the scope beyond the situation of occupation of the whole or part of one State’s territory by the armed forces of another State: at any rate, the records are completely silent in this regard. But obviously, the broader scope could not have the effect of raising doubt as to the application of the Article precisely to such situations of occupation. It may be equally evident from what was mentioned in the previous section that a prime purpose of the introduction of the Article was from the outset to provide individual persons with a right to claim compensation for damages they suffer as a result of acts in violation of the Regulations. As regards occupied territory in particular, this is to say that the Article was designed to provide such a right to residents of such territory, and this irrespective of whether they were neutral persons or persons belonging to the State whose territory was occupied. As mentioned above, the Conference had rejected the distinction in the original German proposal between these two categories of persons. Moreover, according to its proponents the distinction had not been suggested with a view to establishing a difference in legal regime between the two categories: on the contrary, its only purpose had been to take into account practical aspects of the obligation to compensate the victims. Therefore, although the first sentence of Article 3 does not state in so many words that individual persons, including persons resident in occupied territory, have a right to claim the compensation due under the Article, the drafting history of the Article leaves no room for doubt that this was precisely its purpose. In other words, the drafters did not purport to deal at the same time with the

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entirely different matter of State responsibility in a strict sense, that is to say, the responsibility of one State versus another for a wrongful act involving a breach of a rule of international law, which can be attributed to the State because it has been committed by an organ or a person or persons for whose conduct the State is responsible. The claimant in the case of State responsibility properly so called is the State injured by the violation of a rule of international law in its regard, and it claims redress in its own right, not in behalf of any individual person or persons. Two further points should be noted here. The first point is that although its drafters may have been thinking solely of the damage or injury caused to individual persons, the wording of the second sentence of Article 3 is broad enough to cover the case of State responsibility as well. Such a reading of the sentence can never go against the primary purpose of the Article, however, which has been and remains to provide redress to individual persons. The other point is that an international wrongful act which gives rise to a claim of State versus State under the doctrine of general international law relating to State responsibility, at the same time may constitute an encroachment of the legal interests of an individual person. In such a case, that person can bring his or her own claim for damages against the State that is responsible for the act of its organ or agent. Turning next to the specific case of a violation of the laws of war committed by a member of an occupation army and which causes damage to a resident in the territory occupied by that force, it is concluded from the above that in conformity with its purpose, Article 3 covers the damage suffered by that person and the claim he is consequently entitled to bring against the occupying State responsible for the act. Reversing the argument in the preceding paragraph, it should be pointed out that the same act may also constitute an international wrong providing ground for a claim by the State whose territory is occupied; that claim will then be brought under the doctrine of State responsibility, as a claim for reparation by one State against another. In the doctrine of general international law relating to State responsibility for international wrongful acts, “reparation” (or “redress”) is commonly used as a generic term covering the various methods by which a State may discharge itself of its international responsibility for breach of an international obligation. Depending on the specific features of each case, reparation may take the shape of restitution (re-establishing the situation as if the wrongful act had not taken place), indemnity or compensation (payment of a sum of money to make good the damage that remains or arises if restitution is not possible), or satisfaction (in the case of immaterial damage, for instance in the shape of official regrets or apologies, or the punishment of guilty officials). In this regard it is of interest to note that Article 3 specifically and solely utilizes the term “compensation”. The use of this term instead of the more general “reparation” may be seen as yet another indication that as argued above, the drafters of the Article had in mind the case of individual persons, victims of a viola-

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tion of the laws of war, who wish to bring a claim for the injury or damage they suffered as a result of the violation. Indeed, notwithstanding the broadening of the scope of the Article beyond the situation of occupation, the drafters may well have been thinking of that situation in particular: after all, that was the section of the Regulations they were in the process of reviewing. The situation of occupation moreover is particularly likely to give rise to claims for financial compensation. On the other hand, the rather loose and probably not even seriously considered use of the term “compensation” by the drafters of Article 3 does not justify a conclusion that individual claims may only be for financial compensation: there is no reasonable ground to exclude from the scope of the Article claims by individual persons for restitution or, as the case may be, even for satisfaction. A final point to note here is that this section does not discuss the possibility, since long recognized in general international law, for a State to “take up” a case of one of its nationals and present it to the other State, on the international level, as a claim of State against State. According to the classical doctrine on the subject, a State can exercise this right of so-called “diplomatic protection” only after its national has exhausted all available “local remedies”. Since the question of the “local remedies”, if any, to be “exhausted” by a resident of occupied territory who wishes to bring a claim for damages against the occupying State is left to a subsequent section, the matter of diplomatic protection is reserved for that section too. 4

Matters of Procedure

Article 3 of the Convention is utterly silent on the procedure to be followed in order to give effect to the twin rules of responsibility towards, and compensation due to, persons who are victims of a violation of the laws of war committed by members of the armed forces of a belligerent State they are not nationals of. With one exception, the records of the Conference of 1907 are equally silent on this matter. The exception concerns the differentiation in the original German proposal between the compensation of neutral persons (as soon as possible) and persons belonging to an adverse party (to be settled on the conclusion of peace). That is to say: this attempt at differentiation was presented by the German delegate as a merely procedural matter concerning the method and moment of payment. The Conference rejected the proposal, however, because other delegates regarded it not as a defective procedure but as an attempt on the part of the German delegation to introduce here as elsewhere in the Convention a general doctrine favouring neutral persons over persons belonging to the adverse party. This leaves us without information about the ideas the delegates may have had in mind concerning the procedural aspects of a proper implementation of the rules they were codifying in Article 3. The simplest and most plausible explanation of this at first sight strange silence is that the Conference just paid no atten-

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tion at all to the practical side of the matter. In effect, as related in the report of the Second Commission, the delegates appear to have regarded the responsibility under the laws of war of a belligerent State for the conduct of its armed forces, as something analogous to the responsibility under private law of a master for his subordinates or agents; and as they must all have known, application of the latter principle was a matter of well-established legal practice. It should not be forgotten, moreover, that the delegates were representatives of an era when good faith in international relations was assumed as a matter of course, and as such, they may not have seen any particular reasons why they should not leave the elaboration of rules of procedure for the implementation of international obligations to practice. Yet there can be no doubt that the incorporation by the Conference of the provisions on responsibility and compensation in Article 3 of the Convention served a serious purpose and was never considered as a sort of pious vote that belligerent States could disregard at their whim. To suggest otherwise would be tantamount to accusing the participants at the Conference of an act of bad faith. In effect, had they wished to confine themselves to an non-binding suggestion to belligerent States, they would certainly have utilized the instrument specifically available for that purpose, i.e., by couching their suggestion in the shape of a voeu attached to the final document of the Conference. How then should a belligerent State in good faith proceed to implement its obligations under Article 3 vis-à-vis individual victims of violations of the laws of war: in general, and in particular with regard to residents of occupied territory? Or, the other way round, what kind of procedure could such persons expect to have at their disposal for the processing of their claims for compensation? One thing may be immediately obvious: any possibilities in this regard must depend entirely on the circumstances of each case. Obviously the most effective solution consists in compensation paid without delay by or on the orders of the commanding officer whose subordinate is found guilty of the act in violation of the laws of war. It is not unlikely at all that such a direct procedure has often been put into practice. Especially if in a case of occupation the occupied population is behaving in a fairly peaceful manner, commanding officers may find it sound policy not to spoil that situation. An expeditious handling of claims arising out of petty criminality on the part of members of the occupation army may be an important element in such a policy of maintaining the relatively peaceful relations with the population (as well as discipline among the occupation army, for that matter). Although such an administrative procedure is likely to have been applied frequently, it then was too ordinary to attract a great deal of attention and therefore simply went unrecorded. It is moreover suitable solely in fairly clear-cut cases where the assessment of the amount of compensation due poses no particular problems. It should also be repeated that any such procedure of direct compensation presupposes a sort of civilized relationship between occupant and

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occupied population that, as experience shows, does not always prevail. As is only too well-known, situations of occupation in the recent past unfortunately have often displayed radically different characteristics. In all other than these rather special instances, claims arising out of encroachments of the laws of war causing damage or injury to individual persons practically speaking do not lend themselves to such direct settlement. This applies to cases of widespread damage to private property resulting from military operations carried out without due respect for the rules governing the protection of the civilian population in a theatre of combat, as much as to the case of injury a person has suffered at the hands of a torturer in a detention camp. Then, in the specific case of occupied territory, settlement by way of direct compensation is out of the question whenever the violation causing damage or injury is the consequence, and indeed provides evidence, of a general pattern of behaviour of the occupation army that may at least be condoned or perhaps even instigated by the occupying authorities. In any such case, for an individual person to successfully press a claim for compensation requires the availability of some sort of legal proceedings. Confining ourselves to the case of claimants who continue to reside in occupied territory, two types of forum could be thought of: one, a judicial instance established for that purpose by the occupying authorities; and the other: the existing local courts. At closer inspection, neither of these possibilities appears to be anything else than theoretical. Although the occupation authorities, in accordance with the principle of good faith and in order to give effect to Article 3, may be regarded as obliged to establish such an instance open to neutral persons and persons belonging to the adverse State alike, they are most unlikely to do so when it is to be assumed that they at the same time continue to tolerate or instigate the incriminated acts of members of the occupation army. And when it comes to the local courts, it is inconceivable that these would ever be permitted to exercise any jurisdiction the laws previously in force in the territory might theoretically give them in tort cases against the occupying State. With regard to the case of a resident of occupied territory who then and there wishes to pursue his claim for compensation, the conclusion must be that the occupying authorities, either, will be quite willing to settle the claim for damage or injury caused by a member of the occupation army (so that a need for legal proceedings may not arise), or they will block any attempts to pursue the claim as long as the occupation lasts. What if someone who has suffered damage or injury as a result of an act in violation of the laws of war while he was a resident of occupied territory, at some later time but while the armed conflict is still in progress finds himself in a position to file his claim for compensation with the courts in the territory of the responsible State: will the outcome this time be any more positive? Not, to be sure, if he belongs to the adverse State: as a person of enemy nationality he is most unlikely to be permitted to submit his case to those courts. But a neutral

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claimant too may find his road to the court blocked if, as we were assuming, the law encroachments practised in the occupied territory are condoned or instigated at the home front as well. This leads to a second conclusion: The chances seem slight at best that a person, whether neutral or belonging to the adverse State, who as a resident of occupied territory has suffered damage or injury as the result of a violation of the laws of war applicable in that situation, will be able to pursue his claim for compensation with any success before a court of the responsible State as long as the armed conflict lasts. Accordingly, in the case of failure a neutral claimant may then request his government to take up his case by way of diplomatic protection. Whether that government considers it politically opportune to enter into the request at a time when the responsible State still is actively involved in an armed conflict, is another matter. As for a claimant of enemy nationality, the very idea of diplomatic protection can at that stage be no more than an implausible suggestion. 5

Access to the Courts of the Responsible State, Recourse to Diplomatic Protection and Lump-sum Agreements after the War

Before entering into some of the aspects of the practice of diplomatic protection, the question remains to be discussed whether under Article 3 of the Convention a person who as a resident of occupied territory has suffered damage or injury as a result of a violation of the laws of war committed by members of the occupation army, will be in a position to file a claim with the courts of the responsible State once peace has been concluded. As demonstrated earlier, Article 3 lays down an obligation of belligerent parties to pay compensation for damage or injury resulting from acts in violation of the laws of war committed by persons forming part of its armed forces. This obligation applies to all such acts, no matter where committed, including in occupied territory. Having nothing to say about matters of a procedural order, the Article does not exclude any procedural possibilities either. Notably, it provides no grounds why a procedure concerning a claim for compensation should not take place before a court of the responsible State. The Article refers to a “belligerent party” as the addressee of the obligation to pay compensation. With the restoration of peace the State loses its status as a belligerent party. It may be clear, though, that belligerent status is relevant only in so far as the moment of creation of the obligation is concerned. Once created, the obligation persists as long as claims arising under it have not been settled, that is to say, also after the conclusion of peace. This view is in conformity with simple legal logic as well as with the drafting history of the Article: as noted more than once in the text above, the first draft text on the matter specifically provided that claims of enemy nationals would not be settled before peace was concluded, that is to say, before the state of belligerency had come to an end.

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Neither the Convention of 1907 nor international law in general provide for specific terms within which claims arising out of violations of international law must be presented. In the absence of any indication giving ground to the suggestion that Article 3 of the Convention represents an exception to this general picture, there is no obvious reason why a claim under the laws of war arising out of events that took place in the Second World War, today could no longer be pressed by the person entitled to do so as the victim of those events. The above leads to the following conclusion: When during the course of an armed conflict (part of ) the territory of one belligerent State has been occupied by the armed forces of another belligerent State, a person who was and has remained a national of the former State and who at the relevant time was a resident of the occupied territory, after the conflict retains his individual right to claim compensation from the latter State for the damage or injury he has suffered as a result of violations of the laws of war committed by members of the occupation army. To that end, he must be considered as entitled to file his claim with the courts of that State, as the most convenient forum and, indeed, as the proper place for the responsible State to meet its obligation under Article 3 to provide an effective means of redress to the victims involved. Several issues of international law are apt to arise in such a procedure before a court of the responsible State. The first issue cannot better be introduced than with a quotation from the Judgment by the Tokyo District Court in the case of Ryuichi et al. v. The State, the so-called Shimoda Case, decided in December 1963: “When discussing this point, the first question to consider is whether an individual can be a subject of rights in international law.” Answering this question, the Court on the one hand rejects the suggestion that an individual could never become a subject of rights in international law. On the other hand, it does not accept either “the view that individuals have come to be recognized in general as subjects of rights in international law.” (p. 1698) And it “deems it proper to conclude that individuals become subjects of rights in international law only in so far as they are recognized as such in concrete cases by treaties, as seen in the example of mixed tribunals.” (ibid.) The Court is doubtless entirely correct in rejecting both of the above extreme propositions. As regards its final conclusion on this point, with its reference to the example of mixed tribunals, it is readily agreed that these provide an obvious example of forums created especially for the purpose of enabling individuals to press their claims against a defendant State. It is respectfully submitted however that the mixed tribunals were no more than that: i.e., their function was limited to removing some of the obstacles individuals experienced in pressing their claims on the proper level before the courts of the responsible State. The treaties establishing the mixed tribunals did not, in other words, create rights the indi9

Reprinted in English translation in Leon Friedman (ed.), The Law of War, A Documentary History, at p. 1696.

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viduals did not already possess: they merely transposed those rights to another, international, level of procedure. In the particular case of individual victims of violations of the laws of war pressing claims pursuant to Article 3 of the Convention, there can be no doubt that the right of compensation underlying such claims has from the moment of its incorporation in the Article been intended and recognized as a right in international law. The question may next be asked whether the rule of Article 3 has the character of a self-executing rule, so that it can be invoked by an individual person and applied by a court without the need of prior legislation on the domestic level. It will be noted that neither the text of the Article nor the records of the Conference make any reference to the issue. This is nothing extraordinary, though: on the contrary, it is in conformity with what will be found only too often in international treaty-making practice. It is but seldom that either the text of the treaty or the records of the conference that adopted it expressly refer to the issue in a manner that really determines the self-executing or non-self-executing character of rules embodied in the treaty. On the other hand, this absence of express reference to a possible self-executing character of Article 3 cannot decide the issue: there remain the drafting history of the Article (which provides an insight into the implicit expectations of its authors) and a reading of the Article as an essential element for the implementation of the Convention. The drafting history leaves no room for doubt that the authors had in mind a provision available to individual victims of violations of the laws of war and which these persons therefore could invoke without running the risk of technical difficulties of a domestic legal order being put in their way by domestic courts taking cognizance of their claims. Then, when it comes to interpretation of the Article with a view to its actual purpose, the point to note is that it has been given a place in the Convention rather than in the Regulations annexed to it (which, as expressly provided in Article 1 of the Convention, need to be transposed into instructions to the armed forces and therefore require some sort of legislative action on the part of the domestic authorities). Given its character as an essential element in the implementation of the notion of responsibility of the State for the conduct of its armed forces, Article 3 cannot be deemed to be similarly dependent on legislative action by the domestic authorities: such a view actually might come close to throwing into doubt the very willingness of the responsible State to recognize its obligation to implement the Article. Both on the basis of its drafting history and on systematic grounds of treaty interpretation it is therefore submitted that Article 3 must be recognized as having the implicit character of a self-executing rule and hence must be applied as such on the domestic level. Supposing now, as a worst-case scenario, that the courts of the responsible State refuse to admit the claim or reject it on arguably improper grounds, the

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claimant has done what he could to exhaust local remedies. Consequently, the State of which the claimant is a national can now take up his case and start a procedure under the doctrine of diplomatic protection. As the Permanent Court of International Justice has stated: It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. [When thus espousing claims of injured subjects, the State] is in reality asserting its own rights, its right to ensure, in the person of its subjects, respect for the rules of international law.

Elaborating this point in a case of some years later, the Permanent Court spoke of a: principle of international law that the reparation of a wrong may consist in an indemnity corresponding to the damage which the nationals of the injured State have suffered as a result of the act which is contrary to international law… Rights or interests of an individual the violation of which rights causes damage are always in a different plane to rights belonging to a State, which rights may also be infringed by the same act. The damage suffered by an individual is never therefore identical with that which will be suffered by a State; it can only afford a convenient scale for the calculation of the reparation due to the State.

In these judgments, the Permanent Court of International Justice obviously lent the full support of its authority to the classical construction of diplomatic protection as the exercise of a right of the State acting in its own name. Indeed, it went so far as to qualify the “damage suffered by an individual” as “only a convenient scale for the calculation of the reparation due to the State”. This cannot hide another point, which stands out with equal force and which is of particular relevance in the present context. It is that with all its downscaling of the individual claim to the level of a “convenient scale for purposes of calculation”, the Court in equally unequivocal terms did identify as the basis of the whole construction of a State’s right of diplomatic protection, the “principle of international law that the reparation of a wrong may consist in an indemnity corresponding to the damage which the nationals of the injured State have suffered as a result of the act which is contrary to international law.” In other words, the exercise of a right of diplomatic protection presupposes the establishment of the fact that damage or injury has actually been suffered by the “nationals of the injured State”, or, more correctly in terms of today, the injured nationals of the 10 11

Mavrommatis Palestine Concessions ( Jurisdiction) (1924), Ser. A, No. 2, p. 12. Chorzow Factory (1928), Ser. A, No. 17, pp. 27-28.

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claimant State. The “damage suffered by an individual” therefore is not merely a “convenient scale of calculation”, and the claim for compensation to which it gives rise constitutes an indispensable basis for the very exercise of the right of diplomatic protection. To indicate the damage or injury suffered by an individual person and the individual claim for compensation arising out of it as an indispensable basis for diplomatic protection may seem like forcing an open door. It actually is self-evident in all cases where diplomatic protection is initiated in behalf of a single individual. Diplomatic protection need not always be of this type, however: it may also be staged in behalf of a group or class of persons who have jointly submitted to their government a request to take up the case they have against another State for damage or injury suffered from acts imputable to that State. Now, let it be supposed that some of the persons falling in this category of victims, failed without their fault to join the group of individuals requesting diplomatic protection. In that case, the reparation demanded by the protecting State does not “correspond” to the damage suffered by those who did not join the collective request, and neither can their damage be said to have been included in the “calculation” of the claim the protecting State files on the international plane against the responsible State. Since the case of these individuals therefore has not been “espoused” by the State they are nationals of, their right to claim compensation from the responsible State remains intact. This brings up the practice, frequently resorted to by belligerent parties upon the cessation of hostilities and the restoration of normal relations, of settling the matter of compensation to be paid by the vanquished party to the victorious side by way of a lump-sum agreement. From one point of view this is a practical arrangement, given the huge number of claims that may have arisen in the course of the armed conflict and the virtual impossibility to deal with these according to normal procedure; claims moreover that may be a mixture of claims of the State and claims of individuals. In other respects it is a far from satisfactory arrangement, however, if only because in taking into account only the claims of one party it fails to do justice to claims that may have arisen on the side of the other party. Another ground to consider recourse to lump-sum agreements, especially those concluded shortly after the cessation of hostilities, an unsatisfactory solution lies in the fact that the lump sum to be paid hardly can be expected to have been calculated after, and on the basis of, a careful inventory and assessment of individual claims. Indeed, the level of the compensation asked may actually be governed by considerations totally divorced from the amount of damage suffered by individual persons, for instance in occupied territory or in a detention centre or prisoner-of-war camp, as victims of violations of the laws of war committed by members of the enemy armed forces. There may, for instance, have been political grounds for the victorious side to establish the amount of compensation due on a level far below the level of damage actually suffered even at its lowest estimate.

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In such a case of a lump-sum agreement that does not even begin to meet the actual damage, it is difficult to maintain that the victorious State or States have really been acting in behalf of the victims who are their nationals. Taking into consideration developments in international law, which emerged with force after the Second World War and which came to light both in the area of human rights and in humanitarian law as codified in the Geneva Conventions for the Protection of War Victims of 1949, a strong argument can be made that such a practice, however valid on the international plane as an agreement obliging one State to pay a sum of money to another State, cannot have the effect of depriving individual victims of the right to press their own claims for damage suffered at the hands of the enemy. To underscore this point, it may suffice to refer here to a provision common to all four Geneva Conventions of 1949. While leaving contracting States free to conclude “special agreements for all matters concerning which they deem it suitable to make separate provision”, it emphatically adds that: No special agreement shall adversely affect the situation of protected persons, as defined by the present Convention, nor restrict the rights which it confers upon them.

This provision, embodied in Article 6 of Conventions I-III and Article 7 of Convention IV, obviously is posterior to the events of the Second World War. It is not however posterior to the lump-sum agreements concluded after that War, and it enshrines a principle of humanitarian law and indeed of elementary justice that, it is respectfully submitted, ought not to be disregarded in any legal proceedings conducted half a century after its express recognition. 6

Application of the Arguments Advanced in this Expert Opinion to Detained Persons

Most of the argument developed in the present expert opinion takes the situation in occupied territory as its point of departure. In principle, however, the rules set forth in the text above are equally applicable to all cases of damage and injury suffered by individuals as a result of acts committed by members of armed forces in violation of the laws of war. This fact was indeed recognized as early as 1907 with the adoption of Article 3 of Convention IV as the fundamental rule on responsibility and compensation applicable in all circumstances. It is only the practical implementation of the rules which may differ according to the specificities of the situation. Thus, it may be evident that a prisoner 12

In the equally authentic French text: “Aucun accord spécial ne pourra porter préjudice à la situation des personnes protégées, telle qu’elle est réglée par la présente Convention, ni restreindre les droits que celle-ci leur accorde.”

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of war, detained in a POW camp, is simply not in a position to press a claim for damages or injury he is suffering at the hands of members of the armed forces of the detaining State. This does not modify or diminish in any way his right to compensation for the damages or injury suffered: it merely postpones the moment he can pursue his claim. The same applies in other situations where the victim of an injury is temporarily powerless to pursue his legitimate interests, such as the situation of civilians detained in occupied territory or in the territory of a belligerent State for reasons connected with the armed conflict. For the duration of their detention, such civilians are likely to be as incapable as a prisoner of war to pursue any claims for compensation. They too will therefore have to wait until such time as they are no longer detained, and, perhaps even more likely, until the armed conflict has come to an end. For the rest, it may be repeated that not merely the fundamental rule on responsibility and compensation but the rules of implementation relating to procedure and access to the courts of the responsible State apply to these individual persons in the same way as they were argued to apply to (non-detained) persons in occupied territory.

Chapter 30 Individual Right to Claim Damages under Article 3 of Hague Convention IV: Supplementary Expert Opinion, 1999*

On the request of counsel for plaintiffs, I write the present expert opinion in comment on decisions rendered by Civil Divisions of the Tokyo District Court in cases concerning Philippine former “comfort women” (6 Oct. 1998), former prisoners of war and civilian detainees of the ex-Allied Powers (26 Nov. 1998), and former prisoners of war and civilian detainees of The Netherlands (30 Nov. 1998). To that end, relevant parts of the decisions, translated into English, were made available to me. In writing this opinion, I shall not repeat what was included in my opinion of 5 February 1997, submitted to the aforementioned Divisions of the District Court. I welcome this opportunity to clarify what may have been insufficiently clear in the earlier opinion and to take up certain points made by the defendant or by the Divisions as reflected in their decisions. I may note at the outset that it appears to be common ground that the plaintiffs in each of these cases have been the victims of wrongful acts committed by members of the Japanese armed forces in the course of the Second World War. It is also common ground that at the time of that war, Japan was a party to the Hague Convention (IV) of 1907 Respecting the Laws and Customs of War on Land (hereinafter: the Convention), with the annexed Regulations Respecting the Laws and Customs of War on Land (hereinafter: the Regulations). Japan was therefore bound by Article 3 of the Convention as a provision of treaty law. The 1907 Convention and Regulations are in large part a reaffirmation of the provisions of the 1899 Hague Convention (II) and Regulations under the same title. Article 3 of the 1907 Convention was however a new addition to the treaty text. This means that the provisions of this Article acquired binding force as treaty obligations only with the ratification of the Convention by each State and as from the date of its ratification. For Japan, this date was 13 December 1911. Japan has remained bound by Article 3 as a treaty provision ever since.

*

Supplementary Expert Opinion submitted in 1999 to the Tokyo District Court of Appeals in Dutch POW and civilian detainees’ cases as well as in Philippine “comfort women” cases.

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Before 1907, the Rule of Article 3 Was Not Part of Customary International Law

The question has been raised whether the rule laid down in Article 3 did already belong to the body of customary international law prior to its adoption in 1907, or whether it acquired that character after that date. The answer to the first part of the question may be negative, given the lack of information evidencing that prior to 1907, States parties to armed conflicts considered themselves legally bound as a matter of international law to act in conformity with these rules. That they did occasionally follow the practice that subsequently became the rule of Article 3, may however safely be assumed since the idea of immediate compensation for damage done is not all that far-fetched. An instance of the practice may be seen in an episode described in the book by Sakuyé Takahashi, International Law Applied to the Russo-Japanese War, American edition (1908). Discussing the question of private property of Chinese inhabitants of Port Arthur, the author relates the following (p. 264): Some soldiers of the Twelfth Division one day accidentally burned down three dwelling houses. The authorities of the Japanese Army considered the damage thus sustained as a matter of course to be indemnified, and paid a reasonable sum in recompense to those who suffered from it.

This episode obviously provides just a single example and is far from being enough to establish “a practice recognised as law.” It is, on the other hand, of interest because it demonstrates several aspects of relevance in the present context: 1. The destruction of the houses was an act committed by soldiers of the Japanese armed forces and, even though accidental, amounted to a violation of the rule on respect of private property, laid down in Article 46 of the Regulations of 1899 (reaffirmed in Art. 46 of the Regulations of 1907). 2. The “authorities of the Japanese Army” regarded it as quite natural (“a matter of course”) that Japan should indemnify the individual victims for their losses. 3. Since the Japanese Army was an organ of the State, the payment of compensation by the Army authorities amounted to an indemnification by the Japanese State. 4. Payment was effected by these authorities without any need for the victims to submit their claims to any ( Japanese or other) judicial body first. 5. As implicit already in the previous point, the settlement of the matter came about as-it-were on the domestic level, between the victims as members of the occupied population and the Japanese military authorities as representatives of the occupying State: the matter was never brought up to the international level as an affair between Japan and the State of which the victims were nationals, nor do the Japanese military authorities appear to have con-

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sidered the possibility of making the payment in compensation to that State rather than to the victims. Once again, the episode does not by a long way prove that payment of compensation for damage sustained by individual persons as a result of wrongful acts of war was recognised as required by existing customary international law. It does show, on the other hand, that the notion of payment of such compensation by the military authorities directly to the victims was not totally strange at the time. The proposal introduced by the German delegate at the Second Hague Peace Conference of 1907, for inclusion of a provision dealing with this matter, may therefore not have seemed such a very odd suggestion. It should be emphasised that neither this delegate nor any of his colleagues ever suggested that the proposed provision qualified as a pre-existing rule of customary international law. What the German delegate did explain, and what was quite obvious to his colleagues, was that the proposed provision reflected a legal principle embedded since time immemorial in the systems of domestic law they were acquainted with. 2

Article 3 Is a Rule of Treaty Law which Has also Come to Be Recognised as a Rule of Customary Law

The second half of the question asked above, whether Article 3 had perhaps acquired the status of customary international law sometime after its adoption in 1907, may be answered by noting that Article 3 forms part of the 1907 Convention and Regulations. This whole block of rules and principles has been recognised as customary law, first, by the post-World War Two International Military Tribunals of Nuremberg and Tokyo. A recent reaffirmation of this recognition is found in the report the UN Secretary-General submitted in 1994 to the Security Council about the establishment of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (S/25704). In his comment on the proposed Article 3 (Violations of the laws and customs of war), the Secretary-General writes (par. 41): The 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Regulations annexed thereto comprise a second important area of conventional humanitarian international law which has become part of the body of international customary law.

Some might perhaps wish to query whether Article 3, taken by itself, could have collected sufficient practice and opinio juris to be regarded as a rule of customary law. While I shall discuss practice in the application of Article 3 of the Convention further down in this Opinion, I emphasise that the question as posed here is largely irrelevant since the binding force of Article 3 does not depend on

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its being, in the terms of the Secretary-General, “part of the body of international customary law” but rests on its being a provision of “conventional humanitarian international law.” I shall therefore treat the rule of Article 3 as a treaty rule first and foremost. For easy reading of the present opinion, I may repeat here the text of Article 3, in the original French and in its English translation: La Partie belligérante qui violerait les dispositions dudit Règlement sera tenue à indemnité, s’il y a lieu. Elle sera responsable de tous actes commis par les personnes faisant partie de sa force armée. A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.

3

Interpretation of Article 3 as a Treaty Provision

Translated into modern terms, Article 3 provides, in the first sentence, that a State party to an international armed conflict is liable, “if the case demands,” to pay compensation for violations of the Regulations. The second sentence adds that its responsibility extends over all acts committed by members of its armed forces – thus suggesting, as is indeed plausible, that the first sentence concerns the same category of acts committed by members of its armed forces. While this may be clear, the problem is that the text of Article 3 does not specify in relation to whom compensation is due and responsibility arises. In my article, “State Responsibility for Warlike Acts of the Armed Forces,” published in Vol. 40 of the International and Comparative Law Quarterly (1991), p. 827 et seq., I have argued on the basis of my enquiry into the drafting history of Article 3, that the purpose of its proponents was from the outset to enable individual persons, victims of acts in violation of the Regulations, to obtain compensation for the damage or losses they suffered as a result of the acts. If someone might doubt that the statements of the various delegates participating in the discussion of the proposal at the Conference of 1907 show this with sufficient clarity, it should suffice to recall that the initial German proposal suggested payment of compensation to neutral persons directly, during the armed conflict. Only in relation to persons of enemy nationality was it proposed to postpone the payment until after the war – a proposal that was straightaway rejected by the Conference. I simply fail to understand how one could explain this episode other than by recognising that the original idea was to provide for (direct or postponed) payment to individual persons; or, in other words, to make the State party to the conflict liable to pay compensation to those persons; or, again in other words, to give those persons a right to such compensation. And nothing suggests that this original idea was abandoned in the course of the proceedings.

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All of this is however a matter of historical interpretation: of finding the original idea behind Article 3 and the meaning the drafters of 1907 embedded in the text. Historical interpretation is obviously only one method, mentioned in Article 32 of the Vienna Convention on the Law of Treaties (1969) as a “supplementary means of interpretation.” Article 31(1) of this Convention describes what is indicated as “general rule of interpretation”: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

The circumstances under which recourse to the drafting history of a treaty text would be permitted are described in Article 32 as follows: Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: leaves the meaning ambiguous or obscure; or leads to a result which is manifestly absurd or unreasonable.

With respect to these provisions it deserves to be emphasised, first, that they are the outcome of a hard-fought compromise, with many participants at the negotiating table preferring the reverse order, giving precedence to the drafting history of a treaty; secondly, that a most authoritative body like the International Court of Justice never hesitates to delve into the history of a treaty provision whenever the need for interpretation arises. In the case at issue, my curiosity has led me to look into the drafting history of Article 3 in the first place, and with what I consider to be fairly clear results. I shall now proceed to apply the method proposed in Article 31 of the Vienna Convention, which has also been followed in the Decisions under review. I emphasise however that in doing this I see no conceivable reason to disregard what history so clearly indicates. I shall therefore continue to discuss Article 3 with these historical facts in mind. 3.1 The “Ordinary Meaning” of Article 3 Reading the text of Article 3 with an eye solely to the ordinary meaning of its words, one can conclude no more than what was set forth above: a State party to an international armed conflict is responsible, and, depending on the case, liable to pay compensation, for all acts of its armed forces that violate the Regulations. Taken by itself, the text has nothing more to tell us. In particular, there is nothing

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in it that might permit the additional conclusions that only States have a right to submit claims for compensation or that individuals have no such right. 3.2 The “Context” of Article 3 The context of Article 3 is provided by the Convention with its annexed Regulations. These are treaty texts designed to be applied, for the most part, in time of international armed conflict. The events Article 3 is concerned with are acts, committed by members of the armed forces of a State party to the conflict, that are alleged to constitute violations of the Regulations, and for which compensation is claimed. Reading the Article in context it may be inferred that the claim for compensation arises from damage or injury incurred as a result of the acts. While in some situations the direct victim of the acts may be an (enemy or neutral) State, we are concerned here with cases of damage or injury suffered by individual persons (who likewise may be of enemy or neutral nationality). For practical reasons, I shall indicate these cases as “torts”, and the State against which compensation is claimed, as the “responsible State”. The question is whether the context of Article 3 leads to any firm conclusions about who is entitled to claim compensation for these torts. Given the silence of the Article, there are two possibilities to consider: the right may lie with the victim of the tort, or with the national State of the victim (hereafter: “the national State”). It deserves to be emphasised here that in my view, the act of claiming compensation is a legal act, based on a legal right to do so. The claimant is the subject of the right, which arises out of the tort. If the national State is the subject of the right to claim compensation, the victim cannot be a claimant as well but is reduced to the position of a complainant, that is, a person who can merely address a complaint about the tort to the proper authorities of the national State. The difficulties attending this construction with the national State as sole claimant are obvious. As a practical problem, the victim may often be unable to contact the proper authorities of his national State, perhaps for as long as the armed conflict lasts. Another, more fundamental obstacle confronting the victim in the role of “complainant” is the total freedom of the national State whether to act on the complaint or not. It is under no obligation whatsoever to take up individual complaints, and its decision will hinge on considerations of international relations and other policy factors which are completely unrelated to the underlying cause of the complaint and the interests of the victim. Yet another, rather absurd consequence of the above construction occurs when the victim might actually have been in a position to submit his case directly to the authorities of the responsible State, for instance, when soldiers of the occupation forces accidentally burned down his house. His lack of a right to claim compensation precludes him from doing this, and his only option remains to

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seek the first opportunity to send a complaint to the authorities of the national State. Considering now the alternative possibility, with the individual victim as subject of the right to bring his own claim, the practical difficulties may again be considerable, whether the case is pursued during or after the armed conflict. The fundamental difference is however that this time, the victim is the master of his own fate and is not wholly dependent on policy decisions by authorities he has no influence on and to whom his interests are at best one minor factor among the many factors they have to take into account. Another matter is that in this assumption, individual victims may voluntarily choose to pass their claims on to the national State, which then pursues the claims as mandatary. The initiative for this course of action may actually lie with the authorities of the national State, out of a desire to facilitate the treatment of a large number of individual claims. The national State is moreover capable of pursuing the claims on a different level than is available to the individual victims. It may seek a solution through diplomatic channels or, indeed, through international arbitration or other non-violent means of inter-State conflict resolution. It is worthy of note that acting in this manner, the national State arguably exercises its right, inherent in Article 3 as a treaty provision, to ensure that the Article is “respected” and victims are duly compensated. This right of the State exists independent of the right to claim of the individual victims. In sum, interpretation of Article 3 as a treaty provision in the context of the other provisions of the Convention and Regulations still leaves us with two different possibilities. One construction accords the national State of the victim the exclusive right to pursue claims for compensation based on violations of the Regulations. The fundamental drawback of this system, apart from its considerable practical difficulties, is that the decision whether or not to pursue a claim is bound to depend on considerations wholly disconnected from the grounds underlying the complaint. The absurd consequence may even be that a victim is precluded from claiming compensation in a situation where he would have been perfectly capable to do so himself. Under the other construction, individual victims are themselves entitled to bring their claims against the responsible State. This may be very difficult in practice. The essential point is however that the protection of their legal interests remains their own concern and is not made subject to considerations of foreign policy and similar factors. The possibility remains for the victims to mandate the national State to pursue their claims on the diplomatic level. Apart from acting as mandatary for the claimant, the national State may be said to exercise its own right to “ensure respect” for Article 3. Thus, while interpretation of Article 3 in its context has elucidated certain features of Article 3, it has not led to a clear answer to the question of who has the right to claim compensation for the damage or injury resulting from acts in violation of the Regulations.

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It remains to examine whether interpretation of Article 3 in the light of the “object and purpose” of the Convention may lead us out of the present predicament. The direct “object and purpose” of the Convention is doubtless to ensure that identical Regulations for the conduct of land warfare are in force in all the countries accepting the Convention and thus guarantee a common practice in the conduct of war. Yet, looking closer at the Convention, one paragraph of the preamble jumps to the eye that may shed some further light on the matter of its “object and purpose”. It is the fifth paragraph, and it reads as follows: According to the views of the High Contracting Parties, these provisions [adopted in 1899 by the First Peace Conference], the wording of which has been inspired by the desire to diminish the evils of war, as far as military requirements permit, are intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants.

This text makes clear that the purpose of the Convention with its annexed Regulations is not confined to harmonising the practice of war, no matter how horrible the result. The guiding idea (the “desire”) is “to diminish the evils of war, as far as military requirements permit.” Another striking feature is the emphasis on the relations of belligerents with the “inhabitants”: those present in the areas of warfare and particularly in occupied territory. One obvious “evil of war” is the damage and injury incurred by individual persons as a result of acts violating the Regulations. While, as we now know, this “evil of war” requires a variety of devices to either prevent its occurrence or redress its effects, thinking around the turn of the century centred in particular around financial compensation. The 1899 version of the Regulations, annexed to the Convention of that year, already provides in a few cases (Arts. 52 and 53) for payment of losses suffered as a result of acts of the occupying army. Apart from this, the Regulations of 1899 were silent on the matter of compensation for losses suffered by individual persons as a result of wrongful acts of war. This defect in 1907 inspired the proposal for a provision on compensation. Originally meant for the Regulations, it was ultimately included as Article 3 in the Convention. This gives the provision an even wider scope than it would otherwise have had. It was definitely meant to contribute to the “object and purpose” of diminishing the evils of war, in particular in relation to “the inhabitants” and, in a wider sense, with individual persons. This leads me to conclude that a reading of Article 3 with the national State as the only claimant and the victim in the role of a complainant falls short of this “object and purpose”: far from “diminishing the evils of war,” it complicates and aggravates the problem of individual victims’ rightful compensation for the

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losses of war. The other reading, with the individual victim as a claimant in his own right and the national State in a subsidiary role as protector and facilitator, although far from free of difficulties either, results in a more just and flexible system of compensation. It thus plainly serves to “diminish the evils of war, as far as military requirements permit,” in relation to “the inhabitants” of occupied territory and, more generally, in relation to all persons who get caught in the turmoil of war. The conclusion is that out of the two possible interpretations, the second is vastly to be preferred. To the extent that this still leaves room for doubt, I may refer once again to Article 32 of the Vienna Convention on the law of treaties. In the terms of that Article, the first interpretation, although theoretically possible, “leads to a result which is manifestly absurd or unreasonable” and therefore must be rejected. This leaves us with a single interpretation, which is moreover confirmed by “the preparatory work of the treaty and the circumstances of its conclusion.” 4

Individual Persons Can Be the Subjects of Rights under International Law

The above conclusion hinges on one crucial assumption, viz., that individual persons have rights under Article 3. This assumption is rejected in the decisions of the District Court, inter alia, on the grounds that individuals cannot be the subjects of rights under international law. It is my contention that this argument is incorrect. It is since long common practice for individuals to bring cases based on rules of international law against foreign governments, whether before their own courts or before those of the foreign State. By way of example, and confining ourselves to cases before a foreign court, I may mention the treatment of foreigners under customary international law. In countless cases where foreigners had suffered damage or injury in a country as a result of acts of a government agency such as the police or the armed forces, they have successfully brought claims for compensation before the local courts of the State concerned, on the grounds that their treatment had violated the customary “international minimum standard of treatment”. The practice developed with regard to the “international minimum standard of treatment” of foreigners may serve to demonstrate another important point. When in such a procedure the local courts up to and including the last resort failed to honour the claim, the foreigner found himself at an end of his possibilities: it was not open to him to pursue his claim against the State on an international level. It was at that stage of the affair that the national State of the foreigner, on his express request, could take up his claim (“espouse” it), by way of diplomatic protection, and lift it onto the international level as a claim of its own against the other State. Thus, the example of the customary rule relating to the treatment of foreigners demonstrates not only that foreigners have rights under international law, but

660 Chapter 30 also that they lack the capability to bring their case up from the domestic to the international level: they lack “standing” on that level. It appears to me that this point may not have been sufficiently clear in the procedures before the various Civil Divisions of the Tokyo District Court. There may indeed have been confusion between, on the one hand, the capacity to have rights under international law and, on the other, the capacity to engage a State in a procedure aiming to enforce their rights on the international plane. To put it succinctly: individuals can have rights under international law, but they lack the standing necessary to pursue these rights on the international level. The above confusion between “entitlement” and “standing” may also underlie an apparent misapprehension with respect to the notion of “diplomatic protection”. The right for a State to set in motion, on behalf of its national, a procedure of diplomatic protection against another State does not come into being already at the time of the damage or injury suffered by its national. It arises only after the individual victim has exhausted all local remedies; and the action the State then undertakes (if it decides to do so) is based not on the wrongfulness of the act that caused damage or injury to the individual, but on the “injury” suffered by the State as a consequence of the (alleged) miscarriage of justice by the judicial organs of the other State. 4.1

Individual Persons Can Have Rights under Article 3 of the Convention

While in the preceding section I dealt with the general question of whether individuals can be the subjects of rights under international law, I may notice next that individual rights exist in the law of war as well. Even the Regulations of 1907 already explicitly provide in a few instances for individual “rights”: – Article 3 states that members of the armed forces, in the case of capture by the enemy, “have a right to be treated as prisoners of war”; – Article 13 provides that army followers “are entitled to be treated as prisoners of war” provided they have the right papers; – Article 32 provides that a parlementaire “has a right to inviolability”. While in these cases it would be very odd to disregard the express reference to “right” or “entitlement”, in other instances the recognition of rights for the individuals concerned is implicit in a different phrasing: – Article 6 provides that prisoners of war shall be paid for their work, and “the balance shall be paid them on their release”; – Article 46, par. 2, lays down that “Private property cannot be confiscated”; – Article 52, par. 3, provides that “Contributions in kind shall as far as possible be paid for in cash; if not, a receipt shall be given and the payment of the amount due shall be made as soon as possible.”

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To have a right is one thing; to realise it, another. This may be especially difficult in times of war, when an individual wishes to claim compensation from a State Party to the conflict, for the damage or injury caused by an act, committed by a member of the armed forces of that State, which constitutes a violation of the Regulations. As noticed already in the foregoing, everything will depend here on the situation: where the event occurred (occupied or non-occupied territory, or territory of the State in question), and what is the relation between the State and the individual victim of the offence (enemy or neutral, free or detained). Admittedly, in many situations when compensation has not immediately been paid, the individual simply will not be able to start a procedure as long as the conflict lasts. Some points need to be emphasised here. First, individual rights are not always violated: they are, indeed, often respected precisely because they are seen as rights. This was as true in the past as it is today. Then, in cases where a violation of the Regulations (or, more generally, of rules of international humanitarian law) occurs, the individual victim does not always need to start a court case: he may receive compensation for his losses even without the need to ask for it, or a simple request to the local commander or the administrative authorities will suffice to bring about this result. The last-mentioned point is of particular importance. The question has been asked whether there exists sufficient practice to support the assertion that Article 3 is a rule of customary law. I argued above that the question is immaterial, since Article 3 is part of the Convention of 1907, which together with the annexed Regulations has long ago been declared to belong to the body of customary international law. I now add that it is impossible to answer the question with any degree of accuracy. Instances of reliance on Article 3 when a State, or the United Nations, paid compensation to individual victims, were mentioned in the earlier proceedings of the present cases. It cannot be said however how often such compensation was paid without this being recorded: because there was no formal court procedure, or because the fact simply went unnoticed. It is a safe guess that this has happened in very many cases, once again, because the authorities in question were aware of the legal situation and of the right of the individual, and wanted to set matters right. It is submitted that this was in effect precisely the type of situation the participants at the Hague Peace Conference of 1907 had in mind when they discussed and adopted Article 3. They were not worrying about formal prescriptions for the settlement of claims under the Article because they were convinced they could leave this, as so many other aspects of the application in practice of the rules they were devising, to the common sense and good faith of the commanders and authorities who would be called upon to implement the rules.

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No Distinction between Enemy and Neutral Persons or States

The Decisions of the District Court set great store by the distinction, drawn in the original German proposal, between enemy and neutral persons. The argument appears to be that since the proposal was to defer compensation for individuals of enemy nationality until after the war, this must have meant that not the individuals but the State would be the rightful claimant. Admittedly, the drafting history is not completely unambiguous on this point. The lack of clarity reflects an element of confusion in the debate. On the one hand, the desire was to make provision for cases where damage resulting from a violation of the rules of war risked remaining uncompensated because the victims could not expect immediate compensation from the actual perpetrators of the offence: hence the provision that in such cases, the State is responsible and is liable to pay compensation. On the other hand, there was the distinction in the German proposal between two categories of victims: nationals of a neutral State and nationals of the enemy State: the former were to be compensated immediately, and the latter only after the war. The desire to make this distinction was not something particular to the proposal on compensation: it was in line with a general feature of the attitude of the German negotiators at the Conference. This attitude came to light with special clarity in the German proposals relative to the rights and duties of neutral States and their nationals, a topic under discussion in another commission of the Conference. In that discussion, the German delegation sought to achieve protection for neutrals in enemy territory in every respect, whereas the enemy population would have to undergo the hardships of war and occupation. These German ideas met with strong resistance. In effect, a French proposal suggested the exact opposite: the neutrals would suffer the same hardships as the local population. In the end, the issue remained unresolved and no compromise could be found. As a result, both the Regulations and the Hague Convention (V) of 1907 respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land are silent on the matter. Yet, the point to be emphasised is that in the meantime, the attempt to introduce the distinction in what ultimately became Article 3 of the Convention (IV) on Land Warfare had been decisively defeated: the text of that Article makes no distinction between persons of enemy and neutral nationality, and there is no ground whatsoever for reading such a distinction into it. 5

Concluding Remarks

Two points remain to be mentioned briefly by way of conclusion. The first concerns the practice of lump-sum agreements. Over and above what was already mentioned about that practice in the earlier stages of the procedure, I may reit-

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erate that it has nothing to do with our argument about the right of individuals for compensation under Article 3. Lump-sum agreements are inter-State agreements; they are concluded for political reasons and are not, or at most only very partially, based on the damage and injury suffered by individual persons of the nationality of the State that receives money under the agreement. Often, the individual damage and injury are unknown at the time of the conclusion of the agreement, and therefore simply cannot have been taken into account in “calculating” the payment under the agreement. In the same vein, lump-sum agreements have nothing to do with diplomatic protection. Diplomatic protection is the conscious decision by a government to “espouse” the case of its national who has attempted, and failed, to get satisfaction from a foreign State in the course of a procedure in which he has exhausted all local remedies. Lump-sum agreements are generally concluded without even an attempt to find out whether potential individual claimants have followed this road of exhaustion of local remedies. And, once again, individuals could only have done this if they had a right, and the opportunity, to bring claims against the other State before the courts of that State. This brings me to my final comment on the Decisions under review. The Tokyo District Court has paid much attention to the question of whether there are precedents concerning the application of Article 3 on the international level, i.e., in the relations between States. The procedure before the Tokyo Court does not however belong on that level: it is a national or “domestic” procedure. The claimants in the cases submitted to it equally are situated on that domestic level. To the extent the Court needs to find precedents for its interpretation and application of Article 3, the relevant “practice of States” to be looked for is, therefore, that of official persons and organs that can be regarded as agents of States, including – but not limited to – domestic courts. Had the Japanese payment of compensation for damages suffered by Chinese individuals in the Russo-Japanese war been made after 1907, it would have been a perfect example of such practice.

Chaper 31 The Undertaking to Respect and Ensure Respect in all Circumstances: From Tiny Seed to Ripening Fruit*

1

Preparing the Ground

The four Geneva Conventions of 1949 for the protection of war victims open with an unusual provision: it is the undertaking of the contracting States “to respect and to ensure respect for [the Conventions] in all circumstances”. Why reaffirm that contracting States are bound to “respect” their treaty obligations? Does “all circumstances” add anything special to this fundamental rule of the law of treaties? And what about “ensure respect”: should that not be regarded as implicit in “respect”, in the sense of a positive counterpart to the negative duty not to violate the terms of the Conventions? I readily admit that common Article 1 was not the first provision of the Conventions to capture my attention: there was, after all, so much to discover in these impressive structures that Article 1 could easily be passed over as an innocuous sort of opening phrase. Two things have changed this. One was the insistence of the International Committee of the Red Cross (ICRC) that a State Party to the Conventions is not only itself bound to comply with its obligations under these instruments but is under a legal obligation to make sure that other States Parties do likewise. The more this thesis of the ICRC was forced upon us, the less likely it seemed to me that this could indeed be an international legal obligation upon contracting States.

*

1

Published earlier in 2 YIHL (1999) pp. 3-61. Two initial footnotes have been removed. In the second note, the author thanked Jean Pictet and René-Jean Wilhelm, lawyers with the ICRC during World War II, for their support, and Catherine Brown, US State Department, involving him in the Medina case. He dedicated the study “to the memory of Claude Pilloud, idealistic realist for long years in the service of the ICRC, who may have been guilty of ‘creative interpretation’ but doubtless was morally right.” Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick of Armed Forces in the Field; Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea; Geneva Convention III Relative to the Treatment of Prisoners of War, and Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War. For texts, see A. Roberts & R. Guelff, Documents on the Laws of War, 2nd ed. (1989) pp. 169, 193, 215, 271.

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The other factor was an American case that was brought to my attention. A Salvadoran woman, Ms Jesus del Carmen Medina, had fled her war-torn country in November 1980 and “entered the United States without inspection by a US Immigration Officer.” In 1984, brought before the Immigration Court in Texas, she applied for asylum. It was also argued on her behalf, in the alternative, that the U.S. was precluded from deporting her to El Salvador, as that would mean exposing her to violations of Article 3 common to the Geneva Conventions and thus, by virtue of common Article 1, involved the responsibility of the United States to ensure respect for the Fourth or Civilians Convention, and notably for common Article 3. The judge found that the Fourth Convention gave him jurisdiction to grant to a respondent relief in deportation proceedings over and above any relief available under the provisions of the Immigration and Nationality Act, as implemented by regulation. He also, surprisingly, held that Ms Medina, “a Salvadoran citizen who [was] not taking an active part in the hostilities, [was] a protected person under the minimum provisions set forth in Article 3.” Even more surprisingly, he concluded from the evidence she had submitted that she had not met her burden of proof in showing that El Salvador was currently violating Article 3. He therefore denied her Request for Withholding of Deportation but granted her the privilege of voluntary departure. He moreover certified his decision to

2

3

The quotations concerning the case (which has not been published) are from documents in the author’s possession. It appeared in the first instance before the Executive Office for Immigration Review, Harlingen, Texas, upon an Order to Show Cause, filed by the Immigration and Naturalization Service, on 29 March 1984, in reference to the respondent. The Immigration Judge rendered his decision on 25 July 1985 (Case No. A26 949 415: In the Matter of Jesus del Carmen Medina, in Deportation Proceedings), ordering moreover that it be certified to the Board of Immigration Appeals because this case involves unusually complex and novel questions of law. The Board handed down its Decision on 7 Oct. 1988 (Case No. A26 949 415 – Harlingen, In re Jesus del Carmen Medina, in Deportation Proceedings: Certification). Common Article 3 provides in relevant part that in the event of an internal armed conflict, “each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” (etc.)

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the Board of Immigration Appeals, in view of his findings regarding “unusually complex and novel questions of law.” On appeal, these “unusually complex and novel questions of law” were amply debated, with amicus curiae briefs from the American Civil Liberties Union, the Lawyers’ Committee for Human Rights, and (in a different vein) the Department of State. In its decision of October 1988, the Board concluded: that Article 3 stood apart in the Conventions; that the notion of “protected person” in the Fourth or Civilians Convention obtained only in international armed conflicts; that it was unclear “what obligations, if any, Article 1 was intended to impose with respect to violations of the Convention by other States”; and that, in any event, Article 1 was not self-executing. Also rejecting the further argument that customary international law prohibits States from forcibly repatriating “war refugees”, i.e., persons who flee an area of armed conflict without being refugees under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, the Board reversed the judge’s finding “that the Fourth Convention provides a potential basis for relief from deportation within the jurisdiction of the immigration judge” and affirmed his decision to deny Ms Medina’s requests for asylum and withholding of deportation, yet granted her the privilege of voluntary departure.

4 5

Convention Relating to the Status of Refugees, 1951, 189 UNTS (1951) 137; Protocol Relating to the Status of Refugees, 1967, 606 UNTS (1967) 267. According to available information, Ms Medina was never deported, having become a beneficiary of a US policy granting “temporary protected status” to persons who had fled a war zone. The Geneva Conventions are referred to in another case, decided in Sept. 1988 by the US Court of Appeals, 4th Circuit. The case concerns a Salvadoran draft evader who petitioned for review of a final order of deportation issued by the Board of Immigration Appeals in Dec. 1987, denying his motion to reopen deportation proceedings to allow a hearing on his request for political asylum in the U.S. Holding that petitioner had made out a prima facie case and that he merited political asylum on the basis of his sincere refusal to participate in acts of atrocity committed by the Salvadoran Armed Forces and the likelihood that he would be punished for his refusal to serve with those forces, the Court “reversed and remanded” the Board’s decision. The petitioner had also claimed that he should not be forced to return to a country which was regularly violating the Geneva Conventions. The Court mentions this claim in a footnote, stating that it was unclear whether it could be maintained. It specifies that El Salvador was a party to the Conventions as well as to Additional Protocol II of 1977, the United States only to the Conventions. Since the latter “protect those individuals who are endangered by international armed conflicts, while Protocol II protects potential victims of non-international conflicts”, petitioner’s request amounted to a demand “that we apply the norms of the Conventions which the United States have signed to a situation to which they do not explicitly extend.” This was a remarkable statement, given that the Court had earlier quoted extensively from common Art. 3. The claim played no part in the decision to reverse and remand. M.A. A26851062 v. US Immigration and Naturalization Service, 29 Sept. 1988. 858 F.2d 210 (4th Cir. 1988).

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While the ICRC statements had made me wonder, the case of Ms Medina convinced me that common Article 1 and the “unusually complex and novel questions of law” it could give rise to might well deserve further investigation; a task I decided to undertake. The present paper contains the fruits of these labours. It deals, at length, with the drafting history of common Article 1 (section II), the interpretation the ICRC placed upon it in its Commentary to the Conventions of 1949 (section III), and subsequent developments from the Teheran Human Rights Conference of 1968 to the adoption in 1977 of Protocol I Additional to the 1949 Geneva Conventions and the ICRC Commentary thereto (section IV). A final section (V) gives a brief impression of other uses or interpretations of the Article, by an interested party like the Palestinians, by an independent actor like the International Court of Justice, and by academics, including myself. 2

Uncertain Inception: The Drafting History of Common Article 1

The purpose of this section is to find an answer to these questions: What is the origin of the phrase “to ensure respect” in Article 1 common to the 1949 Geneva Conventions? Who wrote it? What did its author or authors hope to achieve? And what about those who negotiated and ultimately adopted the Conventions: what was their understanding of the phrase? 2.1

An Insignificant Seed: Article 25(1) of the 1929 Sick and Wounded Convention

Our search for the origin of the phrase may conveniently start one phase earlier, with the previous major revision and development of the law as embodied in the Geneva Conventions. The occasion was the Diplomatic Conference of 1929, and it resulted in the adoption of two Conventions, signed at Geneva on 27 July 1929. One, “for the Amelioration of the Condition of the Sick and Wounded in Armies in the Field”, replaced the earlier Conventions on the same subject. The other, “relative to the Treatment of Prisoners of War”, was the first convention devoted exclusively to that subject; it was stated to be “complementary to” the chapter on 6

7

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For an exposé that goes back further into history, the reader is referred to the comments on common Art. 1 in the Commentary to the Conventions, published under the general editorship of Jean S. Pictet; see infra section III. D. Schindler & J. Toman, The Laws of Armed Conflicts, A Collection of Conventions, Resolutions and Other Documents, 3rd ed. (1988) (hereinafter: Schindler & Toman) pp. 325, 339. Art. 34. The earlier Conventions are the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 22 Aug. 1864 (the original Convention at the root of the entire structure of Geneva law) and the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field of 6 July 1906. For texts of the earlier Conventions, see Schindler & Toman, pp. 279, 301. Also available online at the ICRC: http://www.icrc.org.

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prisoners of war in the Regulations annexed to the Hague Convention on Land Warfare of 1899, revised in 1907. Each Convention contains an article (Articles 25 and 82, respectively) which reads as follows: The provisions of the present Convention shall be respected by the High Contracting Parties in all circumstances. If, in time of war, a belligerent is not a party to the Convention, its provisions shall, nevertheless, be binding as between all the belligerents who are parties thereto.

The statement in the first paragraph that contracting States shall respect the provisions of the Convention may look like a perfect example of a truism: there is, after all, no need for a treaty expressly to reaffirm that pacta sunt servanda. Yet, the records of the Conference show that the drafters had no such empty gesture in mind. As we shall see, paragraph 1 is the more or less accidental and, in effect, largely meaningless by-product of a heated debate about an entirely different issue of some importance, viz., the application of the Conventions in a war between belligerents not all of whom are parties to these instruments. On the latter subject, earlier law of war treaties often contained a clause which not only confined their binding force to the contracting States (and specifically to the “case of war between two or more of them”) but excluded their binding effect “from the time when, in a war between Contracting Powers, a nonContracting Power joins one of the belligerents” (as the clause reads in the 1899 Hague Convention on Land Warfare). In the Sick and Wounded Convention of 1906 this notorious, so-called si omnes clause provides that its “provisions shall cease to be obligatory if one of the belligerent Powers should not be a signatory to the Convention.” In the draft Conventions it submitted to the Conference of 1929, the ICRC had included in the chapters on application and execution a provision designed to overcome the potentially drastic effects of the si omnes clause. Thus, Article 24 of the draft Sick and Wounded Convention (Art. 25 in the definitive version) provided that, apart from the limitation to contracting States in the event of a 9 10

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Chapter 2 of the Regulations. For the text of the 1899 and 1907 versions of the Hague Convention and Regulations, see Schindler & Toman, at p. 63. Art. 2 of the Convention, Schindler & Toman, p. 71. The version of 1907 contains a simpler text, to the effect that the provisions of the Convention and Regulations “do not apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention.” Art. 24 of the 1906 Convention. It should be noted that the original Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, of 1864, had not contained any provision on the issue of its applicability. In practice, contracting States to the various conventions containing a si omnes clause had not given it effect in the course of the First World War.

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war between two or more of them, a contracting State would only be freed from its obligations under the Convention if it had to fight the army of a non-contracting belligerent, and then only in relation to that belligerent. While the debate in the First Commission (which dealt with the Sick and Wounded Convention) showed broad support for the idea of abolishing the si omnes clause, the ICRC text was considered insufficiently clear. A British amendment received a warmer welcome. Phrased positively, it provided that contracting States are obliged to respect the provisions of the Convention in all circumstances, except when a belligerent Party is not a party to the Convention: in that event, its provisions would not apply between that Party and its adversaries but would still have to be respected between the belligerents who were parties to the Convention. The structure of the British proposal was clear: Respect was due in all “circumstances” except one, viz., participation in the war by a non-contracting belligerent. This would be the sole “circumstance” that could justify non-application of the Convention, and then only between a contracting State and its non-party enemy. The crux of the provision obviously lay in the latter restriction: it was that part of the provision which effectively did away with the si omnes principle. After some discussion, the First Commission left to a drafting committee the task of giving draft Article 24 its final shape. This because the Second Commission (which dealt with the draft for a Prisoners of War Convention) was seized of the same issue, and it was realized that an identical solution had to be provided for both Conventions. From the Drafting Committee (on which both Commissions were represented) the definitive version of Article 25 (and Article 82 of the Prisoners of War Convention) emerged in the shape of two sentences, as quoted above. The sentences were moreover fashioned as two paragraphs, with one paragraph providing for “respect in all circumstances” and the other for the exception concerning the non-party belligerent. Even in the absence of a record of the work of the Drafting Committee, it is not too difficult to guess what may have been its motives in giving the Article 13

14

.Actes de la Conférence diplomatique de Genève de 1929. See, inter alia, the records of the 14th session of the First Commission, 16 July 1929, pp. 321-322, where the ICRC proposal is read out: “Les dispositions de la présente Convention ne sont obligatoires que pour les Puissances contractantes en cas de guerre entre deux ou plusieurs d’entre elles. Elles ne cessent de l’être qu’au cas où l’un de ces Etats se trouve avoir à combattre les forces armées d’un autre Etat qui ne serait pas partie à cette Convention et à l’égard de cet Etat seulement.” Ibid., p. 322: “Les dispositions de la présente Convention doivent être respectées par les Hautes Parties Contractantes en toutes circonstances, sauf le cas où une Puissance belligérante ne serait pas partie à cette dernière. En ce cas, les dispositions de la Convention ne seront pas applicables entre ce belligérant et ses adversaires, mais devront néanmoins être respectées dans les rapports entre les belligérants parties à la Convention.”

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this final shape. For one thing, it is shorter and simpler than the British text. For another, the first sentence of the British text, taken by itself, could still be read as a reaffirmation of the si omnes principle, and it was precisely this principle the Conference had sought to abolish once and for all. In both respects, the final version is an improvement over the British proposal (and, for that matter, over the original ICRC text). With all this, the Drafting Committee had remained well within its mandate, since its rephrasing had not modified the meaning of the text read as a whole. Of interest for our purposes is its decision to distribute the text over two paragraphs. This was merely in conformity with the style maintained throughout the Convention and irrelevant as far as substance goes. Yet the optical effect was that the sentence in the first paragraph came to stand out as a thing apart and, hence, could also be believed to have a distinct meaning of its own. This view is actually taken in the Commentary to the Sick and Wounded Convention, which the ICRC published in 1930. The author, Paul Des Gouttes, a Swiss lawyer and member of the Committee, had acted as Secretary-General of the Conference. Discussing Article 25 (as the other Articles) paragraph by paragraph, he states that with the first paragraph the duty of contracting parties had been underscored to implement (the relevant provisions of ) the Convention in all circumstances, i.e., both in time of peace and war. He adds that emphasis had been laid on the character of “general obligation” of the Convention. Read thus, the words “all circumstances” served to put beyond doubt that, apart from the obvious duty of contracting States to implement in time of war the rules in the Convention specifically written for that occasion, other rules would have to be implemented even in time of peace. The paragraph might thus be regarded as a formal rebuttal of the (not completely hypothetical) argument that the Convention, as a treaty on a topic of the law of war, can only become applicable with the outbreak of war. Des Gouttes’ interpretation was not just an invention of his own. As the records show, its origin lies in a brief exchange of views that occurred in the First Commission. Referring to the original ICRC draft for Article 24, the Chinese delegate said he failed to understand why it appeared effectively to limit the binding force of the Convention to a situation of war: there were, after all, quite a few provisions in the Convention (such as rules about the use of the red cross or red crescent, legislative and other measures for the instruction of armed forces and the punishment of violations, etc.) which had to be implemented in time of 15

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La Convention de Genève du 27 juillet 1929, Commentaire par Paul Des Gouttes (1930), p. 186: “On a voulu signaler ici que la Convention doit s’appliquer en toutes circonstances – ce que ne disait pas celle de 1906 – en temps de paix comme en temps de guerre, quant aux dispositions qui se trouvent appliquables dans l’un comme dans l’autre cas. On a insisté sur son caractère d’obligation générale.” It should be noted that this argument does not find support in any language in the Convention, which is silent on its scope ratione temporis.

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peace. The British delegate then pointed out that the amendment he had proposed, in contrast with the ICRC text but without in any way modifying the substance of the draft Article, actually covered the point raised by his Chinese colleague. For, he said, the phrase stating that contracting States must respect the provisions of the Convention in all circumstances could be read as including time of peace. This splendid example of an occasional argument may well have served to make the British amendment even more palatable to his co-delegates. The argument, although advanced at a time when the draft text was still in the shape of a single sentence, provides sufficient support for Des Gouttes’ subsequent reading of the first paragraph of Article 25 in its final incarnation, as confirming the duty of contracting parties to implement relevant provisions of the Convention both in time of peace and war. Yet, to distil from the recorded drafting history of the Article, including the brief and quite incidental exchange between the Chinese and British delegates on one specific point, the much broader conclusion that there had been in the Conference an insistence on a (vague and undefined) character of “general obligation” of the Convention as a whole, may be reading rather more into it than it can bear. Taking into account this drafting history of Article 25, I feel justified in qualifying paragraph 1 as an insignificant by-product of the debate about the abolition of the si omnes clause. Strikingly, when the end result of the work of the First Commission on the Sick and Wounded Convention was introduced to the plenary Conference, the rapporteur spoke at length about the way the issue of si omnes had been resolved, but he did not so much as refer to the first paragraph. Before leaving 1929, I should mention an entirely different point raised in Des Gouttes’ commentary: could “in all circumstances” perhaps have been intended to cover situations of civil war as well? No, he says, for a number of reasons. For one thing, the issue had never arisen in the debate. For another, such a completely different result would have required a radical adaptation of the Convention’s provisions. And, last but not least, the hypothesis was effectively excluded by the provision in Article 25(2) that “if, in time of war, a belligerent is not a party to the Convention, its provisions shall, nevertheless, be binding as between all the belligerents who are parties thereto.” States, Des Gouttes adds for good measure, were not prepared to accept to be bound except on the international plane. 17 18

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Supra note 13, pp. 329-330: remark by Mr Chi Hung Hsiao (China), reply by Mr Warner (UK), comment by the Chairman of the Commission. Ibid., pp. 621-622. The rapporteur of the Second Commission had less to say about the identical Art. 82 in the POW Convention (pp. 636-637). Obviously, the argument about the significance of that Article is the same as about Art. 25 of the Sick and Wounded Convention. Ibid. The author continued: “Mais il serait hautement souhaitable que les parties dressés l’un contre l’autre dans une guerre civile se souvinssent des dispositions humaines de la Convention afin de les observer entre eux.” See also infra subsection 3.14.

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The point of interest here is that Des Gouttes so obviously wanted to raise the issue of civil war. The inclusion of this paragraph in the commentary published by the ICRC goes to confirm its long-standing interest in the issue, an interest that already in 1921 had resulted in the adoption of a resolution by the Xth International Conference of the Red Cross on the right to relief of “all victims of civil wars and social and revolutionary disturbances”. When the time came for yet another revision of the Geneva Conventions, i.e., after the Second World War (and, perhaps even more significant in the present context, after the Spanish Civil War) the concern about the implications of “civil war” and the need to introduce into the international law of war accepted humanitarian standards for such internal situations had come to figure even higher on the agenda of the Committee. 2.2

Sprouting: Preparations for the Diplomatic Conference of 1949

A series of meetings preceded the Diplomatic Conference which considered and finally adopted the four Conventions of 1949. Draft texts submitted by the ICRC were examined, successively, by a preliminary conference of Red Cross societies (Geneva, 26 July-3 August 1946), a conference of government experts (Geneva, 14-26 April 1947), and the XVIIth International Conference of the Red Cross (Stockholm, August 1948). In the present section I report what little I have been able to find, both in the published records of these events and in the archives of the ICRC, about the history behind the phrase “to ensure respect” and the ideas that may have moved its authors. I note straightaway that the phrase does not emerge in any written text until just before the Stockholm Conference. This may be due to the fact that, at the time of the meetings of 1946 and 1947, the ICRC itself was still thinking along the traditional lines set out in 1929. An internal note in the ICRC archives, written by Claude Pilloud, the ICRC staff lawyer specifically charged at the time with the development of the general provisions of the Conventions, bears me out on this point. Dated 11 April 1947, a few days before the conference of government experts, the note contains a proposal for a common Article 2 that simply copies the provision about “respect in all circumstances” in the two Conventions of 1929. Evidently, the only changes contemplated at that stage were that the 20 21 22

For an excerpt of the resolution (No. XIV) see ICRC & International Federation of Red Cross and Red Crescent Societies, Handbook p. 784. Supra note 1. While the first three were revisions of earlier Conventions of 1906 and 1929, the Convention on the protection of civilians was entirely new. Art. II: “Les dispositions de la présente Convention doivent être respectées en toute circonstance.” The note, dated 11 April 1947, is found in a dossier entitled Notices ayant servi à la Révision des Conventions remises au classement telles-quelles en Sept. ‘47 par Cl. Pilloud.

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phrase would figure in all four Conventions and would be given a more prominent place. The first indication of a different mood is found in an internal note dated August 1947, with Pilloud’s reactions to views expressed by the government experts on the question of how to bring civil war within the scope of the rules or principles of the Geneva Conventions. As noted above, this issue had not been on the agenda of the Conference of 1929. The subsequent active involvement of the ICRC in internal armed conflicts, notably in the Spanish Civil War, had resulted in the adoption by the XVIth International Conference of the Red Cross (London, 1938) of a resolution expressing the need to obtain the application of humanitarian principles in such conflicts. In 1946, the debate had been resumed on the basis of a proposal, submitted by the ICRC to the preliminary conference of Red Cross societies, which cautiously invited parties to a civil war to declare that, subject to reciprocity, they would apply the principles of the Conventions. That conference had adopted a more audacious stance: it had substituted “armed conflict within a State” for “civil war”, deleted the restriction to “principles”, and replaced the reservation of reciprocity with the option for a party to the conflict to state its refusal to apply the Conventions. The 1947 conference of government experts, in turn, steered a middle course: it reinstated “civil war” but added “in the metropolitan or colonial territory of a State”; returned to the principles of the Conventions; and instead of either reciprocal declarations or an express opt-out possibility, opted for reciprocity in actual application. Taking up this matter of reciprocity, Pilloud emphasizes the need to 23 24

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Note dated 18 August 1947 by Cl. Pilloud, Head of the Legal Division: Documentation à l’intention des participants à la séance du 25 août 1947 à 14h.30. The Conference requested the ICRC and national societies “to endeavour to obtain”: a) the application of the humanitarian principles which were formulated in the Geneva Conventions of 1929 and the Xth Hague Convention of 1907, especially as regards the treatment of the wounded, the sick, and prisoners of war, and the safety of medical personnel and medical stores; b) humane treatment for all political prisoners, their exchange and, so far as possible, their release; c) respect of the life and liberty of non-combatants; d) facilities for the transmission of news of a personal nature and for the reunion of families; e) effective measures for the protection of children… (etc.) For text of Res. XIV, see Handbook p. 642. A great deal has been written about the drafting history of common Article 3. I may refer the reader to the survey by Rosemary Abi-Saab in her book Droit humanitaire et conflits internes: Origines et évolution de la réglementation internationale (1986); on the various preparatory meetings, pp. 43-47. – As regards reciprocity, it is of interest

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get rid of the principle of reciprocity as a determinant for the application of the Conventions in civil war. He suggests that this might perhaps be achieved by a provision to the effect that governments, by signing the Conventions, engage not just themselves as governments but the totality of the population they represent. The effect would be that in the event of civil war, all parts of the population could be regarded as ipso facto bound by the Conventions. Such a provision, he adds, would be analogous to the phrase in the Preamble to the Charter of the United Nations: “We the peoples of the United Nations…” Pilloud’s suggestion had no immediate effect: the addressees of the note, a meeting of ICRC dignitaries, simply did not enter into his argument. Indeed, a subsequent proposal for the redrafting of the Sick and Wounded Convention, contained in an internal note of 23 October 1947, once again returned to the text of 1929 about “respect in all circumstances”; this even to the point of keeping it in its old place (as Article 28). In spite of this lack of response, I regard Pilloud’s suggestion as of singular importance, foreshadowing as it does the introduction of the phrase “to ensure respect” in the future Article 1 of the Conventions of 1949. His idea comprised three elements. The first, the engagement of governments, is synonymous to an

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to compare the above discussion with the situation of 1929. In that year, the rule that in the event of an international armed conflict the Conventions would “be binding as between all the belligerents who are parties thereto” but not in the relations between those parties and a non-party belligerent, had been introduced as a device to get rid of the earlier si omnes clause in law of war treaties and, thus, as a step forward. Note by Pilloud dated 18 August 1947, supra note 23, p. 4: “La formule adoptée par les experts au sujet de la guerre civile ne semble pas donner satisfaction, car elle implique le principe de la réciprocité que la Division juridique voudrait, dans toute la mesure du possible, éliminer. C’est pourquoi la Division juridique désirerait mettre sur pied une disposition qui prévoit que les Gouvernements, en signant la Convention, s’engagent non seulement en tant que Gouvernements, mais engagent aussi l’ensemble de la population dont ils sont les représentants. On pourrait alors en déduire que toutes parties de la population d’un Etat qui entreprend une action en guerre civile est liée [sic] ipso facto par la Convention. Ce serait en somme une formule analogue à celle de la Charte des Nations unies qui commence par les mots “Nous les peuples des Nations unies…” En tout état de cause, la Division juridique préférerait une formule analogue à celle qui avait été prévue par la Conférence préliminaire des Croix-Rouges de l’an dernier disant que la Convention sera appliquée par les parties au conflit aussi longtemps que l’une d’elles n’aura pas déclaré publiquement qu’elle ne peut pas s’y soumettre.” Report on meeting of representatives of the Bureau and the Legal Division of the ICRC, 25-27 Aug. 1947; the meeting adopted for internal armed conflict a draft Article 1(3), phrased as follows: “En cas de conflit armé à l’intérieur d’un Etat et de ses dépendances, les dispositions de la Convention seront également appliquées par les parties au conflit.” Note of Jean S. Pictet to the members of the Bureau and the Juridical Commission of the ICRC. The only novelty in the note was a suggestion to add an Article 1 providing that the wounded and sick shall be respected and protected “in all circumstances”.

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undertaking on their part to “respect” the law. The second, the engagement of all parts of the population, is tantamount to an undertaking to “ensure” that the population too will respect the law, in particular – as he specifies – with regard to civil war. And the suggested analogy to the famous phrase “We the peoples” in the Preamble to the UN Charter was obviously meant to lend extra force to the latter undertaking. Then, suddenly and without further warning, our long-expected phrase turns up in the draft texts for revised or new Conventions the ICRC submitted in May 1948 to the Stockholm Conference. The identical opening article in each Convention provides that: The contracting Parties undertake, in the name of their peoples, to respect and to ensure respect for the Conventions in all circumstances.

The ICRC comments to the proposed Article distinguish three elements: (1) the undertaking of contracting Parties to respect the Conventions in all circumstances; (2) a similar undertaking to ensure such respect, once again in all circumstances; and (3) a solemn declaration of governments that they accept these undertakings in the name of their people. For our purposes, the comments to the second and third elements are of interest. As for the second element, the ICRC explains that for the system of protection envisaged in the Conventions to become effective, contracting parties must not only apply it themselves but they must also do whatever they can to ensure that the humanitarian principles underlying the Conventions are universally applied. 29

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Pilloud appears to have used the phrase in a sense diametrically opposite to its meaning in that preamble, which is formulated (though probably not seriously intended) as an endeavour of the peoples to bind their governments. Projet de Conventions revisées ou nouvelles protégeant les victimes de la guerre. The ICRC archives do not contain any internal document explaining this sudden appearance. Most regrettable is the absence of Pilloud’s private papers concerning this period; it is assumed that he disposed of them. In the recollection of René-Jean Wilhelm, at the time Pilloud’s colleague in the legal office, the preparation of the common articles was entirely left to Frédéric Siordet, adviser to the ICRC, and Pilloud; letter to the author dated 19 Aug. 1992. Ibid., p. 4: Art. 1; in the original French: “Les Hautes Parties contractantes s’engagent, au nom de leur peuple, à respecter et à faire respecter la présente Convention en toutes circonstances.” Ibid., p. 5. “Le CICR juge nécessaire de faire ressortir que le système de protection prévu par la présente Convention exige, pour être efficace, que les Hautes Parties contractantes ne se bornent pas à appliquer elles-mêmes la Convention, mais qu’elles fassent également tout ce qui est en leur pouvoir pour que les principes humanitaires qui sont à la base de cette Convention soient universellement appliqués.”

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With respect to the third element, the ICRC reiterates the wish expressed earlier by Pilloud, to see “the peoples” associated with the respect due these principles and with the execution of the resultant obligations, adding that this may facilitate the application of the Conventions in times of civil war. My question about the historical meaning of the phrase “to ensure respect” thus leads to this further question: what did the authors mean by “universally” as used in the comment to the second element; and how did it relate to the notion of the “peoples” as used in the third? Especially in light of subsequent developments, one might be tempted to interpret the term as “worldwide”, implying that each contracting party undertakes to ensure respect by all other contracting parties. Yet, in its historical context, this seems an utterly implausible interpretation. For one thing, for a concept belonging to the realm of international relations to figure without explanation between two elements relating to the domestic level would be very strange indeed. Even more significantly, there is simply nothing to suggest that the authors of the proposed text, with Claude Pilloud as the key figure among them, were thinking along those lines. Rather, as may be evident from the foregoing, their concern at the time was implementation at the domestic level and notably implementation of the main principles in the event of civil war (or, as it was increasingly indicated, non-international armed conflict). I am indeed convinced that the authors used “universally” here in the sense of “by all concerned” or “the whole population” – a notion which they hoped would encompass “all parties” to such a conflict. Viewed thus, the undertaking to ensure “universal” application takes its place as an indispensable step preceding and introducing the idea of associating the population with the respect due the principles. This element seems to have comprised two closely connected concerns. One, of a general order, was the effect the successive rounds of codification were having on the development of humanitarian law. With every new round, the Conventions became more complex and detailed. This might be necessary to make them acceptable to the governments who were negotiating the texts in time of peace; at the same time, their increasingly complicated and technical character risked making people involved in war lose sight of the essential ideas of respect and protection underlying the rules. For the ICRC, and certainly for someone like its lawyer, Jean Pictet, this could indicate the need to compensate for the complexity of the Conventions by disseminating their main principles to the general public. 34

“… le CICR a eu l’intention d’associer les peuples eux-mêmes au respect des principes qui sont à la base de la présente Convention et à l’exécution des obligations qui en découlent. Le texte aura, en outre, l’avantage de faciliter l’application de la Convention, notamment en temps de guerre civile.” – It seems somewhat surprising that, in contrast with Pilloud’s note, the commentary links the reference to civil war to the third element with its remark about the “peoples”, rather than to the preceding paragraph about ensuring respect. In comparison, the later product cannot be said to have brought greater clarity to the matter at issue.

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The other, more specific concern was the need to find agreement on humanitarian principles governing internal armed conflict. As Pilloud had emphasized in his note of August 1947, for such rules to be acceptable to governments they must be applicable to all sides to the conflict. Even more than in an armed conflict between States, this presupposes a widespread awareness of what the principles are about. While the idea of associating the whole population with the respect due to the principles covered this concern, it also represented an attempt, in line with Pilloud’s thinking, to get around the requirement of reciprocity. The proposal for Article 1, therefore, was part and parcel of the ICRC’s incessant efforts to weave into the fabric of the Geneva Conventions a recognition that basic precepts of humanitarian law must be respected in internal armed conflict. As noted above, one attempted line was to introduce into the body of the Conventions a specific provision to that effect. If this attempt were to bear fruit, a rule eliminating the requirement of reciprocity, as now suggested for Article 1, would act as an important complement to the new provision. If (as could not be excluded at the time) the attempt were to founder, the rule of Article 1 would stand out as the sole device to cope with the problems of non-international armed conflict. Unfortunately (though not exceptionally), the records of the Stockholm Conference shed little further light on the issue. In the plenary sessions, not a word was said about Article 1; this in accordance with the President’s policy to avoid plenary discussions about specific articles. The Legal Commission, for its part, dealt with and voted on Article 1. In the course of the brief discussion, Professor Frede Castberg, speaking for Norway, welcomed the suggestion of the ICRC that certain provisions of the Conventions would be binding on individual members of the population, especially in the event of “civil war”; but, he added, this idea could be expressed with greater clarity. Rather than making an attempt to provide such additional clarity, Mr Starr, of the American Red Cross, thereupon simply proposed the deletion of the phrase “in the name of their people”; a suggestion that did not elicit any comment and, when put to the vote, was accepted by 17 votes against five, with four abstentions.

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Stenographic record of the Legal Commission, pp. 33-36: 4th session, 27 August 1948. Professor Castberg’s statement, rendered in French, reads in part: “Je ne présente pas d’autre formule, mais je tiens à préciser que nous marquons notre accord quant à l’intention que les dispositions seront obligatoires pour les individus, surtout en cas de guerre civile.” (my emphasis) While Mr Starr offered no argument for this act of surgery, it may simply have stemmed from fear of something new that had not figured in earlier texts. The record only mentions the fact that he spoke on behalf of the sub-commission that examined the draft Prisoners of War Convention. Of this body, no records have been found. Mr Starr, charged with international affairs in the American Red Cross, subsequently

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Neither in these two interventions nor at any other stage of the Stockholm Conference was there the merest reference to the phrase “to ensure respect” as proposed by the ICRC, let alone to its comments on the proposal. In the end, the plenary Conference, without much discussion, approved the texts of four draft Conventions, for referral to the Diplomatic Conference planned for 1949. In these texts, draft Article 1, as the ICRC proposal minus the phrase deleted as a result of the American amendment, read as follows: The High Contracting Parties undertake to respect, and to ensure respect, for the present Convention in all circumstances.

It is noteworthy that, in the process, the clause about the non-party belligerent – which dealt with the si omnes issue and thus had constituted the essence of the Article in the Conventions of 1929 – had become disengaged from the “respect” provision. Figuring in the draft Conventions as Article 2(3) on “application of the Conventions”, it read: “If one of the Powers in conflict is not party to the present Convention, the Powers who are party thereto shall notwithstanding be bound by it in their mutual relations.” The matter of application in time of peace, which the British delegate had so cleverly explained as covered by the phrase “all circumstances”, likewise was taken care of elsewhere, in the opening words of Article 2(1): “In addition to the stipulations which shall be implemented in peacetime …” Precious little had therefore remained of the original motives behind Articles 25 and 82 to lend substance to the new draft Article 1. For its authors, its main raison d’être now appeared to lie in getting populations involved in the process of creating and maintaining respect for the principles embodied in the Conventions, thus binding them to such respect even in time of civil war or non-international armed conflict. All this in marked contrast to 1929, when neither civil wars nor, obviously, direct involvement of populations had been on the delegates’ minds. Before leaving the Stockholm Conference, two further points should be noted. First, for all its lack of attention to Article 1, the Conference had spent a good deal of energy on the substantive aspects of the issue of civil war, or internal armed conflict. The outcome of its deliberations was the addition of a fourth paragraph to draft Article 2. The paragraph read as follows:

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took part in the Diplomatic Conference of 1949 as a member of the American delegation. Draft Conventions “as approved by the XVIIth International Red Cross Conference” and submitted to the Diplomatic Conference of 1949. Final Record of the Diplomatic Conference of 1949 (hereinafter Final Record), Vol. I, pp. 47, 61, 73, 113. Ibid.

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The other point concerns the matter of a preamble. On a French initiative, the Conference had approved a draft preamble for the new Civilians Convention. It defined the undertaking of contracting States, “conscious of their obligation to come to an agreement in order to protect civilian populations from the horrors of war … to respect the principles of human rights which constitute the safeguard of civilisation.” And it provided the following catalogue of rules which the Parties would have to apply in particular, “at any time and in all places:” (1) Individuals shall be protected against any violence to their life and limb. (2) The taking of hostages is prohibited. (3) Executions may be carried out only if prior judgment has been passed by a regularly constituted court, furnished with the judicial safeguards that civilized peoples recognize to be indispensable. (4) Torture of any kind is strictly prohibited. Both in the introductory evocation of the reasons for a Civilians Convention and in the ensuing catalogue of human rights, the source of inspiration for this text is evident: it was the Second World War with its occupations in Europe and elsewhere which had finally made governments realize that the few rules on occupation in the Hague Regulations of 1907 were no longer adequate to cope with such situations. The Civilians Convention was therefore felt to be of such momentous importance as to deserve a somewhat monumental preamble of its own. 40

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Final Record, Vol. I, p. 113. A final paragraph specified that: “These rules, which constitute the basis of universal human law, shall be respected without prejudice to the special stipulations provided for in the present Convention in favour of protected persons”. – René-Jean Wilhelm, who was already with the ICRC at the time of the Stockholm Conference, told me that one of the French delegates, Mr Albert Lamarle, at the time of the Second World War had been involved with the resistance in France. That experience and his ensuing interest in human rights may well have prompted his proposing a text which clearly reflected the ideas on human rights that were being developed at the time. Regulations Respecting the Laws and Customs of War on Land, Section III: Military Authority over the Territory of the Hostile State. The Regulations are an annex to the Convention (IV) Respecting the Laws and Customs of War on Land, signed at The Hague on 18 October 1907. For text, see Schindler & Toman, p. 69. Attempts undertaken by the ICRC before the war to make governments accept more adequate rules for such situations reaped no result.

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Inspired by this example, the ICRC after the Conference wrote its own draft for a preamble, destined this time for all four Conventions. Following a first paragraph with a highly abstract statement about the nature of “respect for the personality and dignity of human beings” as a “universal principle … binding even in the absence of any contractual undertaking”, a second paragraph describes in the following terms the ensuing basic precepts of humanitarian law: Such a principle demands that, in time of war, all those not actively engaged in the hostilities and all those placed hors de combat by reason of sickness, wounds, capture, or any other circumstance, shall be given due respect and have protection from the effects of war, and that those among them who are in suffering shall be succoured and tended without distinction of race, nationality, religion, belief, political opinion or any other quality.

The third paragraph demands the contracting States to solemnly affirm their will to conform to that principle; to express their intention to implement it as elaborated in each of the Conventions and, surprisingly, to undertake to respect, and to ensure respect for, the Conventions in all circumstances. Both draft preambles were equally interesting. The Stockholm draft was couched in human rights terms, a type of language that, although at the time not particularly fashionable in Red Cross circles, was rapidly gaining respectability elsewhere; witness the adoption by the UN General Assembly, on 10 December 1948, of the Universal Declaration of Human Rights. The ICRC draft, for its part, reverted to more traditional Geneva phraseology. Reflecting the concern mentioned earlier about the increasing complexity of the Conventions and the resultant enhanced difficulty of ensuring their implementation in time of war, it could serve as a vehicle to spread the message of the fundamentals underlying these complex and overly detailed Conventions. Another point of interest is that both texts define the situation they were written for as “war”. Taking into account that the Stockholm Conference had approved a draft Article 2 on application of the Conventions that explicitly distinguished situations of international and non-international armed conflict, the draft preambles clearly used “war” in a non-technical sense covering either situ43

Text in a note dated February 1949 and entitled Remarks and Proposals submitted by the International Committee of the Red Cross – Documents for the consideration of Governments invited by the Swiss Federal Council to attend the Diplomatic Conference of Geneva (April 21, 1949). I have not been able to obtain a copy of the note in English. The first two paragraphs are reprinted in the Commentary to each Convention (e.g., Commentary I, p. 21). In the (original) French version, the third paragraph, different for each Convention, reads as follows (p. 8): “Les Hautes Parties contractantes affirment solennellement leur volonté de se conformer à ce principe. Elles entendent en régler l’application aux … par la présente Convention, et s’engagent à respecter et à faire respecter celle-ci en toutes circonstances.”

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ation. As far as the ICRC draft is concerned, this implies that the incorporation in the third paragraph of the text of draft Article 1 did not necessarily point to a change in its intentions with regard to that text. One is tempted to ask whether a preambular “undertaking to respect and to ensure respect in all circumstances” would have the same legal effect as it could have in the opening Article of the Conventions. For the ICRC, this question apparently did not arise: its comment on the proposed text in the “Remarks and Proposals” does not mention the issue. It does make another interesting point, though: the ICRC actually would have preferred to see its draft for a preamble included as the opening Article of each Convention. And, once again to our considerable surprise, it suggests that it could then be indicated as “Preamble” in the margin. With all this, the stage was set for the Diplomatic Conference that the Swiss Federal Department was convening for August 1949. It would have before it the texts of the four draft Conventions approved by the Stockholm Conference, expedited by the ICRC in November 1948 to the governments invited to participate in the Conference. In March 1949, the ICRC also transmitted to these selfsame governments its note with “Remarks and Proposals”. 2.3

Checked Growth: The Diplomatic Conference of Geneva of 1949

Delegates of 59 States participated in the Diplomatic Conference, held at Geneva from 21 April to 12 August 1949. Prominent among the non-governmental experts at the Conference were the representatives of the ICRC: notably, Jean S. Pictet, Director-Delegate of the ICRC; Frédéric Siordet, legal adviser to the ICRC; Claude Pilloud, Head of the Legal Division; and René Jean Wilhelm, member of that Division. The Conference had been set up, as usual, with a Bureau and a Drafting Committee. To deal with the substance of the four draft Conventions, the Rules of Procedure provided for three committees of the whole: Committee I for the “sick and wounded” as well as “maritime warfare”, Committee II for “prisoners of war” and Committee III for the “protection of civilians”; and, to coordinate their work, a Coordination Committee. The plenary Conference established at an early stage a Joint Committee to deal with the numerous common articles. This 44 45 46

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Ibid. Ibid. Regrettably, the “Remarks and Proposals” are included nowhere in the Final Record of the Conference. The official title of the Conference was “Diplomatic Conference convened by the Swiss Federal Council for the Establishment of International Conventions for the Protection of War Victims and Held at Geneva from 21 April to 12 August 1949.” The list of delegates, experts and observers is in Final Record, Vol. I, p. 158 et seq. Final Record, Vol. I, p. 181, at p. 185: Rules 15-17.

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was a joint meeting of the three Committees and, hence, like these Committees, a committee of the whole. The Joint Committee, in its turn, soon decided to set up a 12-member Special Committee, at the outset mandated especially to discuss the delicate problems posed by draft Article 2(4), in other words, the issue of non-international armed conflict. Its terms of reference were subsequently extended to cover all “other intricate questions which might be submitted for its consideration by the Joint Committee.” Draft common Article 1 logically fell within the purview of the Joint Committee, and equally logically, it was the first of the common provisions to come up for consideration. This was quickly postponed, however, when the Chairman suggested that “it was probable that the Committee would have to discuss it in connection with the Preamble.” The “probable connection with the Preamble” obviously referred to the two draft preambles discussed in the previous section. The opening paragraph of the Stockholm draft spoke of an “undertaking to respect”. On simple grounds of linguistic and legal coherence, a discussion of this phrase would have to take account of the identical wording in Article 1, if only to find out whether the phrase “to undertake” in a preamble has the same legal implications as when it is used in the body of a treaty. And the ICRC draft Preamble not only repeated in its closing sentence the exact words of draft Article 1; it actually indicated that the ICRC regarded it as an integral part of each Convention and hoped that it might become their opening Article 1. 48

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Final Record, Vol. IIA, pp. 21-24: 4th plenary meeting, 25 April 1949: Procedure for the Discussion of the Articles Common to all four Conventions. The Joint Committee met under the chairmanship of Professor Maurice Bourquin (Belgium), Chairman of Committee II. Final Record, Vol. IIB, p. 16: 3rd meeting of the Joint Committee, 29 April 1949. Ibid., p. 26: 7th meeting of the Joint Committee, 17 May 1949. Final Record, Vol. IIA, p. 620: statement of the Chairman in opening the 2nd meeting of Committee III: “It was proposed to submit the Preamble to the Joint Committee for consideration, and several members of Committee III had suggested the advisability of awaiting the results of the discussion by the Joint Committee before embarking on any discussion in Committee III.” In a similar vein: Mr Abercrombie (UK) at the 4th meeting of Committee I, 28 April 1949; Final Record, Vol. IIA, p. 51. Final Record, Vol. IIB, p. 9: meeting of 26 April 1949. As the Chairman said: “Up to the present only in one Convention is proposed a Preamble, namely in the Convention for the Protection of Civilians. But it had been suggested – and the suggestion had met with considerable approval – that all the Conventions should have a Preamble. But Preambles, like the prefaces of books, although placed at the beginning of the Conventions, were written after them.” Both Pictet and Wilhelm confirmed this preference more than once in the course of the proceedings. See, e.g., Final Record, Vol. IIA, pp. 112-114: Pictet, speaking under the item Consideration of Preambles for the Sick and Wounded and Maritime Warfare Conventions, “said that the I.C.R.C. had really intended that the text sug-

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While the link between draft Article 1 and the draft preambles was thus abundantly clear, another point was less so. Since the Stockholm draft was intended for the Civilians Convention only and the ICRC draft was not completely identical for all four Conventions, it could be asked whether the Joint Committee really was the proper organ of the Conference to deal with the preamble. It did not take the Bureau long to conclude otherwise and to decide “that the best course would be to instruct Committees I, II and III each to consider separately the Preamble to the Convention for which it was responsible.” This removed the obstacle for consideration of Article 1 by the Joint Committee, and the Chairman informed the Committee accordingly. Pilloud, the only person to take the floor after this announcement, said that draft Article 1 was along the lines of Article 25(1) of the Sick and Wounded Convention of 1929 and Article 82 of the Prisoners of War Convention of 1929. He also mentioned, without comment, that the Stockholm Conference had deleted from the original ICRC draft the words “in the name of their peoples”. In this remarkably short, uninspired and uninformative “introduction” (if one could call it that) the only point of note is that Pilloud did not in any way hint at a potential extra-domestic effect of the proposed text. Be this as it may, the Joint Committee, having heard his statement, referred draft Article 1 without discussion to the Special Committee. In the Special Committee, few delegates took part in the consideration of the draft Article. The first speaker, Mr Maresca (Italy), voiced his feeling that the terms “undertake to ensure respect” lacked clarity and that, “[a]ccording to the manner in which they were construed, they were either redundant, or introduced a new concept into international law.” This was an astute observation: to his lawyer’s eye there certainly must have been something strange about the proposed text. Unfortunately, as far as the records show, he did not elaborate the point, and neither was it taken up by other delegates. The next two speakers, Professor Castberg (Norway) and Mr Yingling (USA) confined themselves to explaining that (in Castberg’s words) “the object of this Article was to ensure respect of the Conventions by the population as a whole.”

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gested in ‘Remarks and Proposals’ should form the first Article of the Conventions rather than a Preamble to them”; ibid., p. 322: Wilhelm, speaking to the subject of a preamble to the Prisoners of War Convention, concluded that “The I.C.R.C. suggested that the Preamble should figure as Article 1, because experience had shown that Conventions were very often reproduced without their preambles.” Final Record, Vol. IIA, p. 33: 6th Plen. Meeting, 30 May 1949, statement of the President. Final Record, Vol. IIB, p. 26: 7th meeting, 17 May 1949. Ibid. Final Record, Vol. IIB, p. 53: 9th meeting, 25 May 1949. Mr Yingling added that “Article 1 did not imply the obligation to enact penal sanctions.” This remark may have been inspired by the difficult discussions with the

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Pilloud thereupon referred to the proposed draft Article 1 which the ICRC had submitted to the Stockholm Conference. On that occasion, he said, it had “emphasized that the Contracting Parties should not confine themselves to applying the Conventions themselves, but should do all in their power to see that the basic humanitarian principles of the Conventions were universally applied”. Here the term “universally” turned up once again, and again without explanation of its meaning, but also, more importantly, without the speaker taking issue with the explanation of the object of the Article as offered earlier by the government representatives. Conversely, and equally significantly, the latter delegates do not appear to have perceived in Pilloud’s words a contradiction of their own statements: his words did not draw any comments, whether in retort from the delegates who had preceded him or from the only delegate to speak after him, Mr Lamarle (France). After this remarkably short discussion, the Special Committee on 25 May 1949 adopted Article 1 without modification. This also concluded the official consideration of the Article by the Diplomatic Conference. The Joint Committee and subsequently the Plenary Assembly adopted it without any further debate. Apart from its official consideration, Article 1 was mentioned twice in the debate about draft Article 2(4): the provision on internal armed conflict. The first occasion occurred when the Special Committee discussed the problem of how to bind a rebel party to humanitarian rules accepted by the government as treaty law, i.e., the issue which more than anything else had prompted Pilloud to prepare draft Article 1. In the course of the debate, Professor de Geouffre de

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Soviet bloc about penal sanctions for war crimes. – It is of interest to note that at a different time and place and in respect of a different convention, the identical words were interpreted in the opposite sense. In a case involving Art. 1(1) of the American Convention of Human Rights, the Inter-American Court of Human Rights interpreted the obligation of the States parties to “ensure” the free and full exercise of the rights recognized by the Convention to every person subject to its jurisdiction, as implying their duty to “prevent, investigate and punish any violation” of those rights. IACtHR, Velásquez Rodríguez case, Judgment of 29 July 1988, Series C No. 4, para. 166. This delegate (whom we met earlier in the context of the Stockholm Conference, supra note 42) in effect “considered that the term ‘to ensure respect’ had the same purpose as the expression ‘in the name of their peoples’, which had been deleted in Stockholm.” Final Record, Vol. IIB, p. 53: 9th meeting, 25 May 1949. Upon the report of the Special Committee (1st report, Final Record, Vol. IIB, p. 107) the Joint Committee in its 8th meeting unanimously adopted “the new Article 1, reproducing the text of Stockholm” (29 June 1949, ibid., p. 27). Since the Article had passed the Joint Committee without discussion, its report to the Plenary Assembly does not provide any comment on the Article (ibid., p. 128). The 18th Plenary meeting on 28 July 1949 adopted common Articles 1 and 2 at a stroke (ibid., p. 325).

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la Pradelle, delegate of Monaco, advanced the argument that the rebels could be regarded as already bound by the Conventions, for these two reasons: First, because the humanitarian provisions of the Geneva Conventions are of a super-contractual character; and also, and more particularly, because the Contracting Parties undertake not only to respect them, but to ensure respect for them, an article providing for their dissemination among the population through instruction. Therefore, the rebels are a part of the population in revolt of the Contracting State.

The only person to react to this remarkable explanation was Professor Paul Carry, a member of the ICRC. Far from taking issue with his French colleague, he “stated that the International Committee of the Red Cross would welcome the reinsertion of the words ‘in the name of their peoples’ which the Stockholm Conference had deleted from Article 1.” The other occasion arose in connection with the reference in a draft text (as in the final Article 3) to “each Party to the conflict”, implying that both the governmental and rebel sides are equally regarded as parties. Speaking to this point, Mr Lamarle “indicated that the expression ‘each Party to the conflict’ had been introduced as a result of the comment made in the course of the debates, that in accordance with Article 1, the Contracting State undertook to ensure respect for the Convention by its nationals” (etc.). As on the earlier occasion, here again the link between Article 1 and the issue of civil war was manifest. I note with some regret that no other delegate took up the argument, whether in support or dissent. 2.4 The Rise and Fall of the Draft Preambles Even with the adoption of Article 1, there always loomed the ICRC draft for a preamble, which it would prefer to see included as the opening Article. Whether this would indeed end up as the new Article 1 depended on the deliberations in the various Committees on the matter of the preamble. Both for this reason and because of the intrinsic affinity between Article 1 and the Stockholm and ICRC draft preambles, I insert here an overview of the discussions that decided the fate 62 63 64 65

Final Record, Vol. IIB, p. 79: 24th meeting, 15 June 1949; my italics. Ibid. Ibid., p. 84: 28th meeting, 24 June 1949; my italics. It is of interest to note that when the Special Committee began its work, one of the proposals on draft Art. 2(4), submitted by France, suggested “to restrict the application of the provisions of the Convention, within the scope of the fourth paragraph to Article 2, to the case when the adverse party possessed an organized military force, an authority responsible for its acts acting within a determinate territory and having the means of respecting and ensuring respect for the Convention.” (my italics). Ibid., p. 121: 7th Report of the Special Committee, 16 July 1949.

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of these draft texts, beginning with the Stockholm draft for a preamble to the Civilians Convention. Committee III, charged with the consideration of the draft Civilians Convention, took up the Stockholm draft. After a first round of discussions it referred the matter to a working party. This eventually produced a longish text in two parts, the preamble proper and a set of “Preliminary Provisions”. The text represents a fascinating cocktail of the ideas underlying the Stockholm draft and the ICRC proposal, mixed with ideas derived from the Universal Declaration of Human Rights. Since the cocktail had failed to find unanimous agreement in

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Final Record, Vol. IIA, pp. 691-694: 23rd meeting, 25 May 1949; pp. 694-697: 24th meeting, 27 May 1949. Final Record, Vol. III, p. 98: Annex 191; the full text reads as follows: The High Contracting Parties confirm their unanimous resolution to make every attempt and to do all that lies in their power to protect present and future generations from the scourge of war. They feel, however, that it is indispensable in cases where, notwithstanding their wishes and endeavours, a conflict might arise, to take all measures which may contribute to the prevention of a recurrence of the atrocities committed during recent world wars and to the protection of civilian populations from the tragic consequences of the conflict. Their desire is inspired by the eternal principles of law, which are the foundation and the safeguard of civilization. The High Contracting Parties solemnly condemn the acts of barbarism which have revolted the conscience of mankind, and intend to prevent their recurrence. To this effect, they desire to ensure the respect of human personality and dignity by putting beyond reach of attack those rights and liberties which are the essence of its existence. Whatever their nationality, race, sex, political opinion, philosophy or religion, human beings shall have every guarantee of protection for their physical integrity and their spiritual independence. Those who suffer, the wounded, sick, infirm, as well as prisoners or internees, must receive aid and proper care. All are entitled to protection and assistance. Preliminary Provisions The following acts shall be prohibited and shall remain prohibited at any time or in any place whatsoever: (a) human beings shall not be subjected to attempts against their life or injury to their physical integrity. The following shall be considered grave crimes: murder, torture, mutilation, including scientific experiments, as well as any other means for the extermination of the civilian population; (b) the taking of hostages; (c) deportations, either individual or collective; (d) attacks against the dignity of persons, in particular humiliating or degrading treatment or discriminatory treatment based upon differences of race, colour, religion, beliefs, sex, birth or social status; (e) the pronouncement of sentences and penal sanctions carried out without preliminary trial by a regularly constituted tribunal giving all the necessary legal guarantees recognized by civilized nations as indispensable;

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the Working Party, the rapporteur introduced the text in Committee III, adding that it was merely a basis for discussion. In the ensuing discussion it was soon apparent that opinions in the Committee varied widely, both on the proposed text and on the question of whether a preamble was needed at all. The end came with the adoption, by 27 votes to 17, of a Canadian proposal to omit the Preamble altogether, including the Preliminary Provisions. This left the Chairman no choice but to conclude that there would be no Preamble to the Civilians Convention and no further discussion on the subject. A striking aspect of this discussion in Committee III is that no one spoke on behalf of the ICRC, whether to offer comments on the Stockholm draft or to introduce his own proposal for a preamble to this as to the other Conventions. Its own draft preamble came up for discussion, successively, in Committees I and II. Its experts explained its purpose: It was to place right at the beginning of the Conventions, in forceful terms and elaborated into basic rules, the guiding principle underlying these instruments and inspiring all their provisions, viz., that of respect for the human person. The text would bring this principle within easy reach of the general public. The experts also underscored the preference of the ICRC to see its text included as Article 1 in the Conventions, if only because experience showed that treaties were often reproduced without their preambles. Both Committees at an early stage referred the matter to a working party. At the suggestion of Jean Pictet, Committee I first took a vote on the question of principle whether a preambular general statement of principles should be inserted at the beginning of the two Conventions, subjected to its consideration. With 12 votes in favour and 7 against, the answer was positive. In Committee II, no such preliminary vote was taken. The Working Party of Committee I produced a text in three paragraphs. The middle one, expounding in well-chosen terms the principle of “respect for

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(f ) collective penalties as well as any measures of intimidation or terrorism; the destruction of any real and personal property belonging to private individuals or to the State, as well as to social and co-operative organizations when this is not rendered absolutely necessary by military operations. Final Record, Vol. IIA, pp. 777-782: 45th meeting, 9 July 1949. Supra note 53. Pictet defined “the great fundamental principle underlying the Geneva Conventions” as “respect for those who suffered, and for those who, being disarmed, were no longer friends or foes, but simply defenceless beings.” Final Record, Vol. IIA, pp. 112-114: 24th meeting, 31 May 1949. Ibid., p. 323: 20th meeting, 16 June 1949; Committee II referred the proposal to its Drafting Committee No. 2. Ibid., p. 164: 34th meeting of Committee I, 30 June 1949: report of the Working Party.

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the personality and dignity of the human being”, had met with general approval. It was preceded by a paragraph which, following a suggestion by the Holy See (but over the opposition of the Eastern block) stated that the principle, as proclaimed by religions, was of divine origin. The third paragraph, which originally contained no more than a solemn affirmation that the contracting parties would “adhere to this principle”, had been enriched with an amendment introduced by Ukraine on behalf of the socialist delegates and adding “that breaches of this principle shall be prohibited and severely punished.” (At the time, this idea of a general duty to deal effectively with war crimes was less than popular in the Western world.) Obviously, opinions again differed widely among the delegates, not so much on the core of the proposed text as on the ideologically determined fringes. A heated debate was followed by a series of votes, first, on whether to omit the preamble altogether. Since this implied overriding the Committee’s earlier decision of principle that there would be some sort of a preambular text, a two-thirds majority was required. With 22 against 13 and 3 abstentions, the vote fell short of that requirement. Further votes followed: one, to defeat the Ukrainian amend-

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The text read as follows: “This principle commands the alleviation of sufferings occasioned by war and requires that all those who are not directly engaged in the hostilities as combatants and all those who, because of sickness, wounds, capture or any other circumstances, have been withdrawn from hostilities, shall be duly respected and protected and that those among them who are suffering shall be aided and cared for regardless of race, nationality, religion, political opinion or other circumstance.” It read: “Respect for the personality and dignity of the human being is a universal principle which is binding even without contractual undertakings. Religions proclaim its divine origin and all people consider it a fundamental of civilization.” Final Record, Vol. IIA, pp. 165-168: 35th meeting, 1 July 1949. In the course of the debate, Pictet once again explained the position and concerns of the ICRC. Its object “had been to place at the beginning of the Conventions, so that it would be easily and clearly grasped by [the] general public, the guiding principle underlying the Conventions and inspiring all their provisions, namely that of respect for the human person. It was a corollary of that respect that those who were not taking part in hostilities and those who had been placed hors de combat, should be protected, whether friends or foes, without any distinction based on nationality, race, religion or political opinion. That principle was the corner stone of the whole institution of the Red Cross and the Geneva Conventions. It was thanks to it that the Red Cross had become universal and had been able to accomplish its work … The International Committee of the Red Cross, therefore, ventured to recommend that the Preamble to be adopted should be an element of union, emboding [sic] at least the one principle on which all could agree – that of respect for suffering humanity. The purpose of the Conference was to agree upon the provisions in the humanitarian conventions, and not upon the philosophical or metaphysical motives which inspired them and which might be different for different nations. He hoped that if the proposal to omit the Preamble was adopted, it would at least be possible to retain the basic principles set out in the second paragraph.”

690 Chapter 31 ment, and another to accept a Canadian one to the text of the second paragraph. Then, by a final vote of 25 to 7, with 3 abstentions, Committee I adopted the Preamble to the Sick and Wounded and Maritime Warfare Conventions. The debate in Committee II on the report of its Working Party brought to light the same differences of opinion as had surfaced in Committee I. Again after animated debate, two votes were taken: one, on the text of a preamble; and, after it was adopted (by 20 votes to 17, with one abstention) a second one on whether this text should be the Preamble to the Convention. The latter vote produced the reverse result: the proposal was rejected by 20 votes to 9, with 2 abstentions. This meant that there would be no preamble to the Prisoners of War Convention. The net result of the discussions in the three Committees was that Committee I was the only one to have adopted preambles for the two Conventions it was considering, whereas the other Committees had ultimately but quite unambiguously rejected the proposed texts. To mend this incongruous situation, the Coordination Committee recommended that Committee I reconsider its decision. This was rapidly done, and with a vote of 13 to 1 and 5 abstentions, Committee I finally bowed its head to the will of the majority. With this vote, the possibility had also finally disappeared for a substantive text, adopted by way of preamble, to be transformed into the opening article of the Conventions. One last reference to the question of a preamble remains to be noted here. Speaking in the penultimate Plenary Meeting, Mgr. Paul Bertoli, representative of the Holy See, explained the reasons why his delegation had wished to see reflected in the preamble the notion of the “divine origin of all rights which protect human liberty and dignity”: “to lay in that manner the foundation stone of the edifice we have tried so laboriously to build is a constructive act.” 76

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Col. Crawford (Canada) suggested an amendment to the second paragraph, to replace “requires that all those” by “requires that members of the armed forces”. The amendment was adopted by 18 votes to 2, with 8 abstentions. Final Record, Vol. IIA, p. 366: 27th meeting, 7 July 1949. The report of Drafting Committee No. 2 shows that it had taken the text adopted by Committee I as the basis for its discussion. An USSR amendment aimed to remove the reference to religion and to include an express statement about the will to punish; a Swiss amendment amounted to an almost literal reproduction of the text adopted by Committee I. Ibid., pp. 393-394: 31st meeting, 12 July 1949; pp. 395-398: 32nd meeting, 15 July 1949. Ibid., pp. 397-398. The final vote reflects the feeling in Committee II that a preamble should be unanimously adopted or rejected. On the question of the utility of a debate with such an uncertain outcome, Mr Stroehlin (Switzerland) had noted that “[e]ven if it was decided not to have a preamble, it would be useful, from the point of view of the future, to have the views expressed on that subject recorded in the Final Record of the Conference.” Ibid., p. 393. Final Record, Vol. IIB, p. 145: meeting of 18 July 1949, proposal of Thailand. Final Record, Vol. IIA, pp. 181-182: 39th meeting, 18 July 1949, i.e., the same day as the recommendation by the Coordination Committee. Final Record, Vol. IIB, p. 522: 36th Plenary Meeting, 11 August 1949.

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The point that stands out is the width of the gap separating Mgr. Bertoli’s view on the function of the preamble from that of the ICRC experts: in their case, primarily a highly desirable tool for the widest possible dissemination of basic precepts of humanitarian law; for him (and, it should be conceded, more in line with the general idea of a preamble): the expression of a higher philosophical principle underlying that body of law. Should the ICRC have submitted its proposal from the outset as a draft for a common article of the four Conventions, it might have avoided the confusion of ideas that destroyed its project. It also, in retrospect, might have preferred to have put this substantive text in the place of the so much vaguer “respect and ensure respect” provision of Article 1. 2.5 A Measly Little Sprig: Conclusions about the Negotiations What does it all add up to? The most obvious comment is how conspicuously little time and energy the Diplomatic Conference of 1949 spent on draft Article 1. One important factor was its character as originally designed by the ICRC. Among its efforts to solve the riddles of civil war, draft Article 1 stood for the procedural line, aiming to expand the binding effect of a government’s acceptance of the Conventions to the entire population and with that, as it believed, to a future insurgent party. At the Conference, this approach soon became overshadowed by the strenuous efforts, both in the Joint Committee and the Special Committee, to find agreement on substantive norms for “civil war”, whether in the shape of preambular language or as a distinct treaty provision. With the delegates’ attention focused first and foremost on those aspects of the problem, their interest for draft Article 1 was reduced to a minimum. Yet the fact remains that in that context, two delegates did refer to Article 1; not, to be sure, when the draft Article was officially up for consideration, but in subsequent discussions, precisely about the issue of civil war. Another point is that as far as bare text is concerned, draft Article 1 did not offer all that much. As we saw, the Stockholm Conference had left it virtually deprived of its original 1929 meaning, and in 1949, except for the factor of civil 83

After the Conference, Frédéric Siordet published an article entitled “Les Conventions de Genève et la guerre civile” (Revue internationale de la Croix-Rouge (1950) pp. 104-122, 187-212). While his main focus is on the drafting history of Art. 3, he also discusses the difficulty involved in holding rebels bound to respect rules of international law they never adhered to, and the efforts made by the ICRC to overcome this difficulty. In that context he mentions the proposal for Art. 1: “Les Hautes Parties Contractantes s’engagent, au nom de leur peuple, à respecter et faire respecter la présente Convention en toute circonstance.” (pp. 120-121 (his italics; he fails to mention that the Stockholm Conference had deleted the “name of the people”). Further on, he reiterates how the ICRC first believed that to bind a rebel party to an international convention might be impossible; and then points to the words in Art. 3: “Chacune des Parties au conflit sera tenue…”, a phrase which as he notes caused very little discussion, the only concern of governments being to prevent the rebel party acquiring a legal status.

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war, precious little in the shape of substantive ideas was adduced to fill the gap. Indeed, a far more interesting project – and one that caught much more attention both from government delegates and the experts of the ICRC – was its proposal for a preamble, or, to be more precise, for an opening article presented as a preamble. To sum up: The drafting history of Article 1 at the Diplomatic Conference, taken by itself, reads as a surprisingly meagre story. Government representatives simply stated as a plain fact that, by accepting Article 1, a contracting State “undertook to ensure respect for the Convention by its nationals.” No one ever challenged this position, the experts of the ICRC not excluded. Pilloud, while repeating (without elaborating the point) that the text was designed to achieve “universal” respect for humanitarian principles, did not suggest that this meant anything other than respect by the whole population. Indeed, when the only other ICRC delegate to contribute to the debate, Professor Carry, expressed the wish to see the words “in the name of their peoples” reinserted in draft Article 1, this could be understood as an implicit acceptance of the correctness of this reading. Despite my thorough investigations, I have not found in the records of the Diplomatic Conference even the slightest awareness on the part of government delegates that one might ever wish to read into the phrase “to ensure respect” any undertaking of a contracting State other than an obligation to ensure respect for the Conventions by its people “in all circumstances”. Both according to the original intention of the ICRC and in the expressed view of the two delegates who spoke to the point, that obligation would be especially relevant for the event of internal armed conflict. Ironically, that situation had eventually become covered by common Article 3, the text of which resulted in major part from the Stockholm and ICRC drafts for a preamble. The upshot of it all is that the decidedly modest content of the provisions on “respect” in the two Conventions of 1929 had been substituted with a different but not much more important content of the new Article 1 common to the four Conventions of 1949. The “insignificant seed” had truly sprouted into a “measly little sprig”! 3

Head Gardener at Work – the ICRC Commentaries to the Conventions of 1949

The story of the subsequent developments begins with the activities initiated by the ICRC in its role as guardian or, in our botanical setting, “head gardener” of the Conventions. Soon after the Diplomatic Conference of 1949 had closed its doors, it decided to undertake an article-by-article Commentary to the four Conventions. It entrusted the actual writing to “the members of its staff who, from the end of the last world conflict – and even before – had worked on the revision of the Conventions, and were closely associated with the discussions of the Diplomatic Conference of 1949 and the meetings of experts which pre-

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ceded it.” Under the general editorship of Jean S. Pictet, successive volumes (in French) were published in 1952 (Convention I), 1956 (Convention IV), 1958 (Convention III) and 1960 (Convention II). English translations followed in 1952 (Convention I), 1958 (Convention IV) and 1960 (Conventions II and III). Given the many important innovations the new Conventions had brought to the body of Geneva law, the publication of the Commentaries was bound to be of great practical value to all those who would have to work with these instruments. Not that the Commentaries were intended to provide an official, authentic interpretation of the texts. Forestalling any possible misunderstandings on this score, the ICRC notes in the Foreword to each volume that: Although published by the International Committee, the Commentary is the personal work of its authors. The Committee, moreover, whenever called upon for an opinion on a provision of an international Convention, always takes care to emphasise that only the participant States are qualified, through consultation between themselves, to give an official and, as it were, authentic interpretation of an intergovernmental treaty.

3.1 The 1952 Commentary to Convention I The ICRC entrusted the task of writing the comments on Article 1 to its legal adviser, Frédéric Siordet. Although no records have been found that corroborate the point, I do not doubt that he was assisted in this work by Claude Pilloud, the staff lawyer who had been most closely connected with the drafting of the Article. The general set-up of the comments is identical in all four volumes: splitting the Article in three fragments, the authors first tackle “respect”, then “ensure respect”, then “all circumstances”. Since their comments differ in detail in the successive volumes of the Commentary, we will have a close look, first, at these three parts of the text published in 1952. 3.1.1

“To Respect”

Starting out with a bit of history, the authors quote Article 25 of the 1929 Wounded and Sick Convention: “The provisions of this Convention shall be respected by the High Contracting Parties in all circumstances.” Embellishing an already rather fanciful remark by their predecessor, Paul des Gouttes, they 84 85 86

Commentary, Foreword, para. 2. Ibid. Text at note 15; after stating that the drafters of Art. 25 had wished to emphasize that the Convention applied both in war and peace, Des Gouttes added the comment that: “On a insisté sur son caractère d’obligation générale.”

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assert that the idea behind this text was “to give a more formal character to the mutual undertaking by insisting on its character as a general obligation.” While the “character as a general obligation” had been invented by the author of the Commentary to the 1929 Convention, the “more formal character” added another festoon to this piece of decoration. Jumping from 1925 to 1949, the authors assert that both the prominent position and the actual wording of Article 1 have the effect of strengthening the existing undertaking to respect. And they continue: By undertaking at the very outset to respect the clauses of the Convention, the Contracting Parties draw attention to the special character of that instrument. It is not an engagement concluded on the basis of reciprocity, binding each party to the contract only in so far as the other party observes its obligations. It is rather a series of unilateral engagements solemnly contracted before the world as represented by the other Contracting Parties. Each State contracts obligations vis-à-vis itself and at the same time vis-à-vis the others. The motive of the Convention is such a lofty one, so universally recognised as an imperative call of civilisation, that one feels the need for its assertion, as much because of the respect one has for it oneself as because of the respect for it which one expects from one’s opponent, and perhaps even more for the former reason than for the latter.

What “measly little sprig”: we are here at the heart of civilisation! But what, one wonders, are the authors doing here: writing a legal comment on the terms of Article 1, or attempting to delight us with a brilliant picture of a better world? Writing almost half a century later and only too painfully aware of the many instances of total disregard for the 1949 Conventions and for the rest of humanitarian law that have occurred since, I cannot but feel that their assessment of an existing “universal recognition as an imperative call of civilisation” was much too optimistic. The long experience of the ICRC with belligerent behaviour might have led them to exactly the opposite conclusion: that contracting States, though only too well aware of their obligation under international law to respect the letter of any treaty they are party to, had perceived a particular need to reaffirm this obligation in the new Geneva Conventions, precisely because the provisions of such instruments are so regrettably prone to being coldly disregarded in the turmoil of war. For all its abundant rhetoric, the quoted text contains two propositions of material significance. One concerns the non-reciprocal character of the Conventions: the other, evidently regarded as a sequel to the first, is the description of its character in terms that evoke the notion of obligations erga omnes. While one may be prepared to agree with these propositions and in particu87

Commentary I, p. 25.

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lar with the first one, the point is that neither proposition can be derived in law or logic from the mere undertaking of contracting States to “respect” the Conventions: divorced from its qualifying words (“in all circumstances”) this term cannot sustain the claim that there is a principle of non-reciprocity underlying the Conventions. In sum, the first part of the commentary, rather than being directed specifically at the “undertaking to respect” as a treaty provision to be interpreted as such, instead provides us with a glimpse of the “lofty” views of the authors on the Convention as a whole. 3.1.2

“To Ensure Respect”

The authors begin their discussion of the undertaking “to ensure respect” by noting that “[t]he wording may seem redundant.” The reason they give for this perceived redundancy, as well as the arguments they offer by way of explanation of the phrase, once again deserve to be quoted in full: When a State contracts an engagement, the engagement extends eo ipso to all those over whom it has authority, as well as to the representatives of its authority; and it is under an obligation to issue the necessary orders. The use of the words “and to ensure respect” was, however, deliberate: they were intended to emphasise and strengthen the responsibility of the Contracting Parties. It would not, for example, be enough for a State to give orders or directives to a few civilian or military authorities, leaving it to them to arrange as they pleased for the details of their execution. It is for the State to supervise their execution. Furthermore, if it is to keep its solemn engagements, the State must of necessity prepare in advance, that is to say in peacetime, the legal, material or other means of loyal enforcement of the Convention as and when the occasion arises. It follows, therefore, that in the event of a Power failing to fulfil its obligations, the other Contracting Parties (neutral, allied or enemy) may, and should, endeavour to bring it back to an attitude of respect for the Convention.

Yet another striking line of argument! For one thing, the assertion that an engagement contracted by a State “extends eo ipso to all those over whom it has authority” overlooks two well-known problems of international law. Not in every domestic legal order does a treaty, once accepted, belong to the law of the land. Even where that is the case, another question is whether and to what extent the treaty is accorded self-executing effect – and the answer to that question varies from country to country. The Geneva Conventions are not above these legal niceties. And, one may ask, over whom do the authors think a State has “authority”?

88

Ibid., pp. 18-19; footnote omitted.

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Then, with the focus shifting from authority to responsibility, we are informed that the phrase “to ensure respect” was deliberately chosen “to emphasise and strengthen the responsibility of the Contracting Parties”. Small matter that the records show nothing of the kind: this is just one more indication that the authors were a long way from providing a faithful comment on the Article as it had emerged from the Conference. More important is how and to what effect the phrase is supposed to perform the trick of “emphasising and strengthening” the responsibility of contracting States under international law. The relevant rules of that body of law define in some detail the scope and limits of State responsibility for internationally wrongful acts, including violations of treaty obligations. A provision in a treaty emphasizing this fact would be as innocuous as it is redundant. And an undertaking “to ensure respect” is much too vague and imprecise to augment States’ existing international responsibility. But then, the authors may not have been using the word “responsibility” in this technical sense but, rather, as a common term denoting the duty of States to live up to their treaty obligations. This would be in line with the examples they offer of down-to-earth practical measures aimed at rendering the Convention more effective, viz., supervision of execution as well as peacetime preparation for a correct implementation in time of war. It would also be in line with the overall impression of the text under consideration as a description of the character of the Convention rather than a comment on the specific text of Article 1. 3.1.3

“It Follows, Therefore”

The closing sentence of the authors’ comment on “to ensure respect” begins with the words, “It follows, therefore”. This confronts us with a riddle: It follows, from what? Not, for sure, from the advice in the last but one sentence to prepare in peacetime for the case of armed conflict: the reference to “other Contracting Parties (neutral, allied or enemy)” presupposes that the Power failing in the fulfilment of its obligations is a State at war. A glance at the original French text suffices to show that this is a false problem, however. In that version, the phrase opens with “Ainsi encore”, that is, more correctly, “Likewise”. When we substitute this as the opening word in the English text, it is evident that the authors did not intend a direct link as of cause and effect between the two sentences. What remains is the striking contrast between the earlier part of the paragraph and the closing sentence: out of the blue, the latter confronts us with actors not parties to an armed conflict but which yet are expected to display a certain conduct in relation to the conflict. The last sentence thus turns into something of an appendix to the paragraph. Now, the appendix in the human body seems to have no significant function: should we assume that the sentence likewise was nothing but an ineffective appendix from its inception? Since the authors cannot have wished to produce such a meagre result, they must have had a better motive.

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This makes us wonder: Where did they find inspiration for their statement, and what did they expect to achieve? That the drafting history of Article 1 cannot have been the authors’ source of inspiration is obvious: more than anyone else they must have been aware how weak was the basis in the records for an attempt to interpret any part of the Article as a binding treaty provision. This makes it plausible that they did not bother about past history and found their inspiration in their own minds. Are we to believe that the authors wished to suggest that the “undertaking to ensure respect” had the effect of adding to a contracting State’s right (“may”) to “endeavour to bring [another State] back to an attitude of respect” for the Conventions, a legally binding obligation actually to do so? The clause has often been interpreted in that sense, first and foremost by the ICRC. I cannot accept that the authors wanted to make such a drastic suggestion. More likely, they simply saw an opportunity to introduce at this stage the idea that States not involved in an armed conflict might wish to assume an active role, as an additional means for the promotion of respect for the Conventions over and above the formally accepted but not overly effective mechanisms of enforcement provided in these instruments. Their reasoning may have gone along these lines: Respect of multilateral treaties is a common interest of the contracting States. Yet usually they are not too keen to make a fuss over breaches that do not affect them in their direct, legally protected interests. A démarche not based on such a direct interest even risks being denounced as intervention in the internal affairs of the alleged actor State. But surely, the mere risk of an unpleasant reaction need not prevent a State from doing what it considers right, i.e., tell a treaty partner that its behaviour militates against the common interest of the other partners, and invite it to mend its ways. This applies a fortiori in the case of treaties like the 1949 Conventions, with their perceived erga omnes character and with an “object and purpose” that clearly goes to the essence of humanity. While this explains “may”, by “should” the authors plausibly hoped to incite States Parties to overcome their habitual queasiness and assume a more “activist” 89

In support of the contention in the text, I refer to a letter Mr René-Jean Wilhelm wrote to me on 19 August 1992. Mentioning that neither Mr Siordet nor Mr Pilloud (who within the ICRC had been responsible for the general provisions) was a specialist in international law, he writes: “Il me semble que si de vrais ‘publicistes’ avaient participé à la rédaction du projet d’article 1, ils n’auraient sans doute pas fait figurer dans le même membre de phrase une obligation (I) disons classique, à savoir l’obligation d’un Etat partie de prendre tant les mesures législatives, administratives, etc. internes qu’implique pour cet Etat, en vertu du droit international général, le fait de devenir et d’être partie à une Convention … et une obligation (II) d’une toute autre nature, une obligation qui est alors un ‘novum’, à savoir de faire en sorte que les autres Etats parties respectent les Conventions, obligation qui serait aussi celle d’Etats non impliqués dans le conflit.” He goes on to suggest that the second interpretation was devised only after the 1949 Conference, in the course of the writing of the Commentary. This is precisely my contention too.

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stance in relation to events beyond their borders that put the continued respect of the 1949 Conventions in jeopardy. It is unlikely, however, that they expected to bring about – as it were, single-handedly – a firm legal obligation (an “undertaking”) of contracting States to “ensure” that one of their brethren, suspected of violating the Conventions, would mend its ways and henceforth “respect” these instruments. Such an obligation did not exist before the Diplomatic Conference and could not be deduced in any manner from the deliberations at the Conference. Nor is the term “should” particularly suited to express such an obligation. And after all, as stated explicitly in the Foreword to the Commentaries, authoritative interpretation of the Conventions is a function left to the contracting States themselves. 3.1.4

“In all Circumstances”

As noted above, the authors did not include the phrase “in all circumstances” in their discussion of “respect” and “ensure respect”. Tackling it next as a separate notion, they cited the comment by their predecessor, Paul Des Gouttes, that while the identical words in the 1929 Convention had not been meant to imply civil war, application of its humanitarian provisions by the parties to such a war would be “eminently desirable.” Such voluntary application had occurred in some measure, e.g., in the Spanish Civil War. Contracting States had now gone much further: under common Article 3, they “undertook in advance, in the event of a non-international armed conflict, to respect, if not the Convention, at least the regulations contained in that Article”. This “revolution in international law” justified the conclusion that, as in 1929, “in all circumstances” does not relate to internal armed conflict. Instead, and barring the provisions applicable in peacetime, the words meant that: as soon as one of the conditions of application for which Article 2 provides is present, no Power bound by the Convention can offer any valid pretext, legal or other, for not respecting the Convention in all its parts. The words “in all circumstances” mean in short that the application of the Convention does not depend on the character of the conflict. Whether a war is “just” or “unjust,” whether it is a war of aggression or of resistance to aggression, the protection and care due to the wounded and sick are in no way affected.

With that, the authors surely had succeeded in finding an original meaning for the phrase, which actually reflected a topical issue. According to one school of thought, the United Nations Charter, with its ban on aggression, precluded an aggressor from claiming the protections offered by international humanitarian law. The opposite view was that even though the ban might have such an effect in some areas of international law, it could not set aside the principle of the equality of belligerents as an absolutely essential prerequisite of international humanitar-

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ian law. The debate was not purely academic either. It had a place in the Cold War, with the then-Soviet side being the main proponents of the former position, and their Western opponents of the latter. In this debate, the authors, as true Red Cross adepts, could only be expected to side with the opponents of the “ban” argument. The suggestion, implicit in the quoted paragraph, that their view actually was deduced from the phrase “in all circumstances” and hence reflected a consensus at the Conference, was without any basis in the drafting history of Article 1, though. The episode also shows that they had apparently decided to abandon the ideas they had earlier advocated in preparing for the Diplomatic Conference of 1949, and to forget the (rare) comments the words “in all circumstances” had actually drawn in the course of the Conference. Rounding off their comments on common Article 1, the authors state that: In view of the preceding considerations and of the fact that the provisions for the repression of violations have been considerably strengthened, it is evident that Article 1 is no mere stylistic clause, but is deliberately invested with imperative force, and must be obeyed to the letter.

3.1.5

Evaluation

After all my comments on their comments, it will come as no surprise that I cannot share their enthusiasm for the “preceding considerations”. In effect, and in marked distinction to the bulk of the Commentary, their comments on Article 1 do not represent a serious attempt to interpret its wording “to the letter” and with due respect for its drafting history. The comments do provide an, at times rhetorical, exposé of the authors’ views on the character and “imperative force” of the Convention as a whole. These views are interesting enough to have deserved their place in the literature on the Convention. They cannot however support the (slightly exaggerated) statement that Article 1 “is deliberately vested with imperative force, and must be obeyed to the letter”: that force is inherent in its character as a binding treaty provision but applies solely to its meaning as such, not to interpretations placed upon it without support in history or logic. In this regard, I note with regret that the procedure the authors chose, of breaking up Article 1 into three bits, left “all circumstances” dangling in the air, disconnected from “respect” and “ensure respect”. In particular, the failure to discuss “respect in all circumstances” as an undivided whole may have made the 90

In later years, the argument against the equality of belligerents would be used by or on behalf of those involved in wars of national liberation. Their contention that the colonial Powers were aggressors and therefore the peoples fighting for self-determination were entitled to disregard any constraints of humanitarian law, met the same counter-argument that this went against the very core of humanity as the basis of that body of law.

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authors lose sight of the significance that may be attributed to that expression. In view of the many rules in the Conventions that must be complied with “in all circumstances” they might have concluded what to me is obvious: that the “ordinary meaning” of “respect in all circumstances” is respect under each and every factual condition, whether favourable or adverse: “for better or for worse”. Put differently, “respect in all circumstances” means respect where the fortunes of war make compliance especially difficult or where an enemy no longer appears to respect the rules; i.e., “respect” in the face of arguments of necessity or negative reciprocity. The outstanding feature of the authors’ comments on common Article 1 remains their valuable suggestion concerning the active role third States “may, and should” play in the promotion of respect for the Conventions. Unfortunately, the manner in which they put forward this idea, as an appendix to a paragraph on other matters, was not conducive to a better understanding, either of the Article or of their comments, and has provided grounds for the erroneous assertion that third States would be legally bound to do so. 3.2 The Subsequent Commentaries to the 1949 Conventions In the 1956 Commentary to the Fourth Convention, the comment on Article 1, although somewhat shorter, has retained its structure and much of its language. The comment on the phrase “to ensure respect” is completed with a new sentence following after the statement that contracting States “may, and should, endeavour to bring [a belligerent failing in its obligations] back to an attitude of respect for the Convention.” The added sentence reads as follows: The proper working of the system of protection provided by the Convention demands in fact that the Contracting Parties should not be content merely to apply its provisions themselves, but should do everything in their power to ensure that the humanitarian principles underlying the Conventions are applied universally.

This phrase sets forth with even greater clarity the authors’ stance on the role of contracting States in promoting respect for the Convention (this time the Fourth). It does not, however, bring out any presumed, previously hidden intention of the authors to introduce a firm legal obligation of this order. In the paragraph on “in all circumstances”, the non-applicability to “civil war” is restated in remarkably blunt terms: “The words ‘in all circumstances’ [...] do not, of course, cover the case of civil war, as the rules to be followed in such conflicts are laid down by the Convention itself, in Article 3.” Forgotten are the days of the Diplomatic Conference, when the opposite was just as strongly suggested as a matter of course. 91

Commentary IV (English version published in 1958), pp. 15-17.

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Then, the statement that whenever one of the conditions of application of the Convention is met, no contracting State can offer any valid pretext “for not respecting the Convention in its entirety”, now is followed by a sentence opening with: “The words in question also mean” (replacing the earlier “mean in short”). This suggests that the argument about the irrelevance of assertions concerning the character of the conflict, “just” or “unjust” war, or “aggression” should be regarded as independent of the no-valid-pretext statement. The point is not elucidated, though. The 1958 Commentary to the Third Convention again offers some changes. In the comment on the phrase “to ensure respect”, the original sentence about the role of third States (“It follows, therefore …”) has been replaced by: This applies to the respect of each individual State for the Convention, but that is not all: in the event of a Power failing to fulfil its obligations, each of the other Contracting Parties (neutral, allied or enemy) should endeavour to bring it back to an attitude of respect for the Convention.

Thus, the confusing phrase, “It follows, therefore”, has disappeared, only to be substituted with the hardly clearer “that is not all”: the authors must have been convinced that there was some mysterious link between the two statements. The verb “may” that preceded “should” has vanished as well, without being replaced by another term. The reason for this omission is unclear, and so is its effect. Then, the comment on the phrase “in all circumstances” is reduced to its bare essentials: The words “in all circumstances” refer to all situations in which the Convention has to be applied and these are defined in Article 2. It is clear, therefore, that the application of the convention does not depend on whether the conflict is just or unjust. Whether or not it is a war of aggression, prisoners of war belonging to either party are entitled to the protection afforded by the Convention.

Strikingly, the notion of “civil war” is no longer mentioned at all. The no-validpretext argument has disappeared too, and, with that, any questions about its relation to the argument concerning just or unjust wars or war of aggression. The fourth and last Commentary to be published, to the Second Convention, appeared one year later, in 1959. Surprisingly, and without explanation, the comments on Article 1 largely revert to the second, 1956, version, abandoning the modifications introduced in 1958. In the comment on “to ensure respect” the clause “may, and should” is reinstated, and while the part on “in all circumstances”

92 93

Commentary III (English version published in 1960), pp. 17-18. Commentary II (English version published in 1960), pp. 24-26.

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is still silent on “civil war”, the no-valid-pretext argument is back again, with the paragraph on aggression (etc.) following “also”. 3.3

Conclusions

The paragraphs written by way of comment on Article 1 make interesting reading, though not for the purpose of gaining an insight into the legal significance of Article 1. Their most striking feature is that they are so conspicuously out of line with the comments on the other articles of the Conventions. While the latter comments generally inform the reader about the drafting history of each article, and suggest interpretations in the light thereof as well as of their actual wording, the comments on Article 1 do nothing of the sort. They hardly ever refer to its negotiating history, and the various bits and pieces of its actual text are used as little more than a pretext for a discourse on the character of the Conventions as a whole, as perceived by the authors. Quite peculiar in this respect is the manner in which the clauses “to respect” and “to ensure respect” are treated completely separately from the phrase “in all circumstances”, thus making us lose sight of the historical and, indeed, intrinsic link between the phrases. Other intriguing aspects concern the radical departure from earlier views on the relevance of Article 1 for internal armed conflict, and the suggestion that the phrase “in all circumstances” was designed to forestall arguments about the non-applicability of the Conventions in an unjust war or a war of aggression. As noted above, the latter suggestion did not reflect international consensus at the time. We will moreover see later that the international community subsequently distanced itself from both of these viewpoints. Our comparison of the comments on Article 1 in the successive Commentaries showed up several variations in the detail of their language. For the most part, the changes plausibly were occasioned by considerations of economy, in conformity with a general trend to reduce in the later Commentaries, the space allotted to the common articles. I have found no indication that any of the omissions or amendments represented a real change of opinion. I may repeat my conviction that the authors never meant to suggest that contracting States not party to an armed conflict are under an affirmative international legal obligation to “ensure” that belligerent parties respect the Conventions. And once again, even had they wished to do so, their suggestion could not have carried that effect. Finally, I doubt that even at the time of writing the Commentary, the authors entertained such high expectations about the Conventions as their comments suggest: their long acquaintance with the actuality of armed conflict must have given them some scepticism on this score. Perhaps, therefore, we should under94

When I got to know Claude Pilloud in the early 1970s, he was as firmly dedicated as ever to the cause of humanitarian law. At the same time, he was only too well aware

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stand, and appreciate, their show of optimism about the intrinsic force of Article 1 as an attempt to exorcise the evil spirits constantly threatening the respect for humanitarian standards. 4 The Gardening Continues: From the Teheran Conference to the ICRC Commentary on the Protocols of 1977 When it comes to evil spirits, there were two phenomena in the post-1949 period that could qualify as especially threatening to fundamental notions of humanitarian law. One was the build-up of nuclear armaments: the other, the so-called wars of national liberation waged in a succession of territories under colonial domination. In either case, the fate of the civilian population was at stake: theoretically (and fortunately only so, after the overwhelming impact of Hiroshima and Nagasaki) in the case of nuclear weapons, on account of the counter-city strategy as a method of deterrence; very much in a practical sense in the liberation wars, by the widespread recourse to guerrilla tactics in populated areas. A related cause of concern in the latter wars was the situation of captured guerrilla fighters: should these “irregular” fighters be regarded, or at least treated, as prisoners of war, or could they be dealt with as criminals and terrorists? In the Red Cross world, indiscriminate (nuclear or guerrilla) warfare and the risks it poses to the civilian population provoked a long series of resolutions speaking out against such forms of warfare. One of these, Resolution XXVIII of the XXth International Red Cross Conference (Vienna, 1965), stands out as a milestone in the development of international humanitarian law. Considering “that indiscriminate warfare constitutes a danger to the civilian population and the future of civilization”, the Resolution “solemnly declares” four principles for the protection of the civilian population, to be heeded by “all Governments and other authorities responsible for action in armed conflicts.” The fourth and last “principle” is “that the general principles of the Law of War apply to nuclear and similar weapons.” While the latter statement of principle was of interest with a view to the possibility of nuclear “mega-war”, the phrase referring to “all Governments and other authorities responsible for action in armed conflicts” was of more immediate practical effect in that it implied the application of the principles for the protection of civilians against the hazards of war in all armed conflicts, be they international or internal, conventional or guerrilla. The other side of the matter, the fate of captured guerrilla fighters, led to a characteristically pragmatic reaction of the ICRC. Focussing on the protection of such detainees, it sought access to all places of detention, reported its findings to the responsible governments and authorities and, as appropriate, suggested

95

of the tremendous difficulties attending its enforcement. Schindler & Toman, p. 259; Handbook p. 773.

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improvements in their treatment. At the same time, not wishing to get entangled in the political aspects of the wars of national liberation, it refrained from taking a public stand on the controversial issue of recognition of the guerrilla fighters as combatants entitled to prisoner-of-war status as provided in the Third Convention of 1949. Precisely such claims were formulated with increasing insistence in other quarters, notably in the Third World. While the stance of these countries was first and foremost political, there could be no doubt that, even with the recent Geneva Conventions of 1949, the existing treaty law of armed conflict was inadequate to cope with this as with the many other problems arising out of the modern forms of warfare. It was equally clear that the force of political developments in the 1950s and 1960s made the need to take up these problems all that more urgent. 4.1

A Self-appointed Assistant Gardener: Sean MacBride

In the wake of the International Red Cross Conference of 1965, another push in the same direction came from the International Conference on Human Rights, held in 1968 in Teheran. Just before it closed its doors, it adopted a resolution on “human rights in armed conflicts” calling for renewed efforts to improve the applicable law. Since the resolution contains language of some relevance to the idea of Article 1 as a useful device for the promotion of compliance with the rules of international humanitarian law, it deserves to be dealt with here. For its drafting history, I have relied to a large extent on a study by Keith Suter on international law aspects of guerrilla warfare. His study clearly shows the all-important role played in this process by the rightly famous Irish human rights lawyer and activist, Sean MacBride. In the 1960s, Sean MacBride had assumed the function of Secretary-General of the International Commission of Jurists, a Geneva-based non-governmental human rights organization with ramifications all over the world. His function gave MacBride a leading role in the organization of the Teheran Conference. In the course of the work he became convinced that the Conference could provide a much desired opportunity to take up outstanding issues of humanitarian law, or, in his terminology, “human rights in armed conflict”, notably the need to protect civilian populations against the vagaries of modern warfare. This despite the fact that matters of humanitarian law strictly speaking did not belong to the realm of human rights and, with that, of the International Commission of Jurists: at the time, the difference, nay, the distance between the two disciplines 96 97

Michel Veuthey, Guérilla et droit humanitaire (1976) pp. 245 et seq. K.D. Suter, An International Law of Guerrilla Warfare (1984). Ch. 2, “Creating the issue: the 1968 United Nations Human Rights Conference and Non Governmental Organizations,” provides detailed information about Sean Mac Bride’s authorship of the resolution.

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was felt strongly in many quarters. Fortunately, the close contacts between ICRC functionaries such as Claude Pilloud and a man like Sean MacBride (not by any means an “authorized gardener” of the Geneva Conventions) did not noticeably suffer from such, in retrospect, rather academic considerations. From 1965 MacBride tested out his ideas on various occasions. Of particular relevance to the matter of common Article 1 was the address he gave in 1967 at a distinguished international gathering. His subject was “The Strengthening of International Machinery for the Protection of Human Rights”, and he opened his address with a list of what he regarded as the main types of human rights violations. His list included, first and foremost, “massive but temporary wholesale violations of human rights in international armed conflicts”; and secondly, such violations in internal conflicts. In that context he raised this question: Has the time not come, when it would be desirable, that whenever an internal conflict or disturbance arises in any part of the world the Secretary-General of the UN, or some other UN authority, should specifically and unequivocally bring to the notice of the belligerents the provisions of the “law of nations” as elaborated by the Hague and Geneva Conventions as well as the provisions of the Universal Declaration of Human Rights? In cases where the belligerents are receiving active support from outside States, these States should also be requested to use their best endeavour to ensure the proper application of these minimal humanitarian rules. They should be reminded that by Article 1 of the Geneva Conventions they have bound themselves not only to respect the conventions themselves but to ensure their respect in all circumstances. If a procedure of this nature were adopted it would minimize some of the brutality which is so prevalent in internal conflicts; it would be essential that this machinery should operate automatically wherever an internal conflict is anticipated.

Note that with respect to internal armed conflict, MacBride identified as the applicable “law of nations”, besides the complete 1949 Geneva Conventions, the Hague Convention of 1899/1907 on the law of land warfare and, indeed, the Universal Declaration of Human Rights. In the next breath he even adds “that the spirit and terms [of this Declaration], which appears to be gaining authoritative recognition as a code binding on all nations under international law, would clearly support the principles discussed above.” And all this at a time when common Article 3 was the only humanitarian law provision formally applicable to internal armed conflicts and States more often than not treated these as their internal affairs regardless! Speaking as he did, MacBride showed himself to be much more of a human rights activist than a conventional lawyer. 98

The Nobel symposium on “International Protection of Human Rights”, Oslo, Sept. 1967; Suter, op. cit. note 97, at pp. 26, 27.

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Equally worthy of note is how, with a view to the promotion of respect for humanitarian law in internal armed conflict, MacBride attributes roles to the United Nations as well as to States actively supporting a party to the conflict. With respect to that specific category of States, he refers to Article 1 of the Geneva Conventions, by which they “have bound themselves … to ensure [respect for the Conventions] in all circumstances.” Of interest is his suggestion that a reminder of the content and purport of Article 1 might induce these “actively supporting” States to “use their best endeavour to ensure the proper application” of the “minimal” [sic!] humanitarian rules embodied in the abovementioned instruments. The restriction to States in an active supporting mode, which does not follow from the text of Article 1, may have stemmed from the realistic consideration that those States might be more likely than others to assume such a role. Another point of note is MacBride’s total disregard for the assertion in the ICRC Commentary that Article 1 lacked effect in situations of internal armed conflict. An NGO Human Rights Conference, held in Geneva in January 1968 with MacBride in the chair, provided one more testing ground for his ideas. The Conference concluded, inter alia, that “Governments and the United Nations, together, must ensure that [the Geneva Conventions] are known to all and respected in all circumstances.” This was a very vague formulation, and the reference to “Governments” even suggested a lack of awareness that with the Conventions of 1949, respect of common Article 3 had become an obligation (whether of law or fact) for all the parties to an internal conflict, not for the incumbent government alone. However, while the quoted text is open to such criticisms, the event may have provided the requisite backing and encouragement for Sean MacBride to introduce his ideas at the Teheran Conference. 4.2 The Teheran Conference on Human Rights, 1968 The Human Rights Conference opened in Teheran on 22 April 1968, and in the weeks that followed it worked its way through a long series of draft resolutions on numerous aspects of human rights in the world. Late in the proceedings, on 5 May, a first draft for a resolution on “human rights in armed conflicts” was officially distributed. With some amendments it was then introduced on 9 May, at the 13th and last session of the Second Committee – really in the nick of time. Speaking for the sponsors (and, we may assume, for Sean MacBride

99 Suter, op. cit. note 97, pp. 27-28. 100 A/CONF.32/C.2/L.45. 101 A/CONF.32/C.2/L.45/Rev.1; sponsors: Czechoslovakia, India, Jamaica, Uganda, United Arab Republic. 102 A/CONF.32/C.2/SR.13.

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as the auctor intellectualis behind the draft resolution) Mr Shahabuddin (India) pointed out that: The purpose was to draw the attention of the international community to the inadequate implementation of the existing humanitarian international conventions and rules in armed conflicts and to study the need for additional conventions in that field or for revising existing conventions, so as to ensure the better protection of civilians, prisoners and combatants in all armed conflicts and the prohibition and limitation of the use of certain methods and means of warfare.

With regard to the need to modernize the code of warfare embodied in the Hague Conventions, if only in the light of the development of chemical and other weapons of mass destruction, Mr Shahabuddin correctly pointed to the absurd situation that the most recent codification of that body of law dated from 1907. As he reminded his audience: “The Hague Conventions of 1899 and 1907 had, indeed, envisaged the drawing up of ‘a more complete code of the laws of war,’ but that code had not yet seen the light of day.” With respect to the problems of contemporary non-conventional warfare, he felt that the increasing exposure of civilian populations to “the dangers and consequences of hostilities” led to a need for “up-to-date and comprehensive international safeguards.” Improved safeguards were equally necessary for “other victims of armed conflicts”, notably “freedom-fighters”, who were subjected to “torture and execution … at the hands of colonial and racist regimes”, whereas in the eyes of the sponsors of the draft resolution they “should be treated as prisoners-of-war or political prisoners.” To effectuate this ambitious agenda, the sponsors proposed a complex procedure, with the General Assembly being “requested to invite the SecretaryGeneral to set up a committee of experts to study the problem in consultation with the International Committee of the Red Cross.” Member States should be reminded of “the existing conventions and rules of international law on the subject in question and they should be urged to respect them.” And, to round it all off: “the United Nations, which represented the collective conscience of mankind, should seek a solution of the problem” – surely a remarkable expression of confidence in that body. 103 The phrase, “a more complete code of the laws of war”, is found at the outset of the so-called Martens clause, a preambular paragraph in the 1907 Convention which reads as follows: “Until a more complete code of the laws of war has been issued, the high contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.”

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With some amendments (to meet concerns of the Swiss delegate relative to the independent position of the ICRC) but without further debate on the merits, the Committee adopted the draft resolution by 53 votes to none, with one abstention. Three days later, on 12 May, the 25th plenary session of the Conference without any discussion adopted Resolution XXIII, by 67 votes to none, with two abstentions. Mr Shahabuddin, it may be noted, had not had much to say about common Article 1 and its possible implications for a State not involved in an armed conflict, even one actively supporting a party to the conflict. The one and only phrase in his introduction that may be read as linked to that issue was his suggestion that States should be reminded of the existing rules of humanitarian law and “should be urged to respect them.” In contrast, Resolution XXIII contains a preambular paragraph which has a direct bearing on our question. In this (ninth) paragraph the Conference notes that: States parties to the Red Cross Geneva Conventions sometimes fail to appreciate their responsibility to take steps to ensure the respect of these humanitarian rules in all circumstances by other States, even if they are not themselves directly involved in an armed conflict.

I do not know who drafted this paragraph; the records of the Conference shed no light on this issue, and Keith Suter is silent on the subject. I can only comment that, like the earlier utterances of Sean MacBride, this text is far from suggesting that States Parties to the 1949 Conventions are under a firm legal obligation to ensure respect for their provisions by other States. “Fail to appreciate”, “responsibility” instead of duty, “take steps”: these are all very cautious formulations. Even so, the text does provide a useful reminder that States not directly involved in an armed conflict are nonetheless entitled to “take steps to ensure” that their colleagues respect the rules they voluntarily accepted as law. 4.3 Impact of Resolution XXIII Without any doubt, Sean MacBride has been completely serious in his attempts to enhance the role of third States in promoting belligerent parties’ respect of humanitarian law. Yet neither he himself in his various utterances on the subject, nor Resolution XXIII of the Teheran Conference, expressed that idea in terms of a legal obligation. Obviously, neither he nor those other persons who took part in the drafting of the resolution, sought to formulate a rule of law. Their aim was, rather, to win support for the political idea of third-party promotion of human rights in a setting of armed conflict. 104 Res. XXIII on “Human Rights in Armed Conflicts”; A/CONF.32/41, Final Act p.18.

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The Teheran Conference was an event organised by the United Nations and with State representatives as the main actors. It thus provided the first occasion for States to elucidate their views on the right interpretation of common Article 1, notably of the clause “to ensure respect in all circumstances”. The conclusion must be that they did not: they accepted without debate a text that was so weak as to be almost meaningless. But then, at the time, the matter of “human rights in armed conflicts” was a human rights subject only in name, and the participants at the Conference may not all have been aware of the various possible interpretations of Article 1. Most of them, in other words, were unqualified as “gardeners” of the Geneva Conventions, and their apparent failure to give attention to a matter that did not really fall within their field of expertise cannot be held against them. The fact remains that the Teheran Conference did include in the preamble to resolution XXIII, a paragraph reminding “States parties to the Red Cross Geneva Conventions” of their occasional failure to appreciate their responsibility to “take steps to ensure the respect of these humanitarian rules in all circumstances by other States.” With a bit of good will, this paragraph may be said to reflect the ICRC commentators’ views on the role of third States, which “may and should” take such steps in the event of serious violations of humanitarian law by warring parties. Although of limited significance for our understanding of common Article 1, Resolution XXIII has been remarkably successful in its substantive demands. On 19 December 1968, the UN General Assembly adopted Resolution 2444 (XXIII) inviting the Secretary-General, “in consultation with [the ICRC] and other appropriate international organizations”, to study “steps which could be taken to secure the better application” of humanitarian law in all armed conflicts, as well as the need for additional legal instruments “to ensure the better protection of civilians, prisoners and combatants in all armed conflicts and the prohibition and limitation of the use of certain methods and means of warfare.” Within ten years, a diplomatic conference adopted the two 1977 Protocols Additional to the 1949 Geneva Conventions on the protection of war victims; and soon thereafter, in 1980, a UN conference adopted a convention that set limits to the use of certain conventional weapons.

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Protocol I Relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS (1979) 3 (Roberts & Guelff, op. cit. note 1, p. 387); Protocol II Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS (1979) 609 (Roberts & Guelff, op. cit. note 1, p. 447). 106 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, with annexed Protocols on Non-Detectable Fragments (Protocol I), Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II) and Prohibitions or Restrictions on the Use of

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While the substantive desiderata of the Teheran resolution thus were rapidly fulfilled, the same was not true for the procedural element it contained. In effect, General Assembly Resolution 2444 (XXIII) did not reiterate the complaint in the preamble of the Teheran resolution about States’ failure to appreciate their responsibility to react to other States’ encroachments of humanitarian law. At best, the invitation to the Secretary-General to study steps conducive to a more faithful implementation of existing humanitarian rules could be considered as including, or at any rate as not excluding, a possible constructive role in this sphere for States not themselves directly involved in an armed conflict. 4.4 A Short Story: The Additional Protocols of 1977 The next opportunity for States to shed light in a collective setting on what they regarded as the right interpretation of common Article 1 came with the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law, which met at Geneva in four yearly sessions from 1974 to 1977. Would they grasp it this time? Draft Additional Protocol I, as prepared by the ICRC, did not contain a provision repeating the language of common Article 1 of 1949. Instead, draft Article 1 specified that the Protocol would be supplementary to the Geneva Conventions, and defined its scope of application by means of a reference to Article 2 common to the Conventions of 1949. This simple way out of the question of scope was not to the liking of numerous delegations, notably from the Third World and the Soviet bloc, who wanted to extend the scope with wars of national liberation, as properly belonging in the category of international armed conflicts. Several amendments to Incendiary Weapons (Protocol III), adopted 10 Oct. 1980; 1342 UNTS (1980) 137 (Roberts & Guelff, op. cit. note 1, p. 471). 107 The Official Records (hereinafter: Records), in 16 volumes, were published by the Swiss Federal Political Department in 1978. More readily accessible sources to the same material are Howard S. Levie, Protection of War Victims: Protocol I to the 1949 Geneva Conventions, Vols. I-IV (1979-1981) with Supplement (1985); and, by the same author, The Law of Non-International Armed Conflict, Protocol II to the 1949 Geneva Conventions (1987). 108 Records, Vol. I Part III, pp. 3 et seq. 109 Explaining this omission, Antoine Martin said that most of the experts the ICRC had consulted had seen no need to reaffirm the general principles common to the Geneva Conventions, or common Article 1 in particular. Meeting of Committee I, 15 March 1974 (CDDH/SR.6), para. 28. On the preparatory phase and in particular the two sessions of the Conference of Government Experts (1971, 1972), see this author’s articles in 2 NYIL (1971) pp. 68-90, and 3 NYIL (1972) pp. 18-61. On the first session of the Diplomatic Conference, see his paper in 5 NYIL (1974) pp. 3-34. 110 “The present Protocol, which supplements the Geneva Conventions of August 12, 1949, for the Protection of War Victims, shall apply in the situations referred to in Article 2 common to these Conventions.”

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add to draft Article 1 language to that effect were tabled in March 1974, at the very outset of the discussions in Committee I on the common articles. Another amendment, submitted at the same time by a handful of delegations, proposed to substitute draft Article 1 with a text in three paragraphs, the first of which reiterated the text of common Article 1 of 1949. The second, like the ICRC draft, defined the scope of the Protocol by referring to Article 2 of 1949, and the third contained a modernised version of the Martens clause. In the course of the ensuing long, difficult and occasionally bitter debate about the character of wars of national liberation, colonialism, humanitarian law, ius in bello versus ius ad bellum, some few representatives found occasion to sneak in a word in favour of the proposal to reiterate the text of common Article 1 in the opening Article of the Protocol, but without commenting on its meaning. Two other delegates actually offered comments on the merits of the proposal. Speaking for the United Kingdom (a co-sponsor of the amendment), Colonel G.I.A.D. Draper drew attention to the words “undertake to respect and to ensure respect for” and “in all circumstances”, which “in view of their importance … had been taken bodily from Article 1 common to all four Conventions.” He did not elaborate on the importance of the quoted words. The other delegate, Ambassador B. Akporode Clark of Nigeria, stated that Article 1 “broke new ground in 1949 by introducing the idea of unilateral obligation not subject to reciprocity: from

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One, CDDH/I/5, sponsored by Algeria, Czechoslovakia, the German Democratic Republic, Hungary, Poland, the Soviet Union and Tanzania, proposed to include “armed conflicts where peoples fight against colonial and alien domination and against racist regimes” among the international armed conflicts. The other, CDDH/I/11, sponsored by Algeria, Australia, Cameroon, Egypt, Ivory Coast, Kuwait, Libya, Nigeria, Norway, Pakistan, Sudan, Syria, Democratic Yemen, Yugoslavia and Zaire, sought the same result with respect to “armed struggles waged by peoples in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and defined by the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations”. Variations on the same theme were subsequently presented in rapid succession by various groups of delegations, ultimately resulting in a merger of the two main ideas. CDDH/I/12 and Corr.1 and Add.1, 8 March 1974, sponsors: Argentina, Austria, Belgium, the Federal Republic of Germany, Italy, the Netherlands, Pakistan, and the United Kingdom. Meeting of Committee I, 11 March 1974 (CDDH/I/SR.3), para. 11: Mr De Breucker (Belgium): “Paragraph 1 of amendment CDDH/I/12 and Add.1 had been taken from the Geneva Conventions”; para. 31: Mr Cristescu (Romania) “considered that paragraph 1 of proposed amendment CDDH/I/12 and Add.1 was acceptable…”. Meeting of Committee I, 15 March 1974 (CDDH/I/SR.6), para. 24: Mr Obradović “appreciated the value of paragraphs 1 and 3 of amendment CDDH/I/12 and Add.1 and Corr 1…” Meeting of Committee I, 12 March 1974 (CDDH/I/SR.4), para. 26.

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that point of view, paragraph 1 [of the proposed amendment], which reaffirmed already recognized principles, was acceptable.” Ambassador Clark has remained the only participant at the Diplomatic Conference of 1974-1977 to actually give an interpretation of common Article 1 of 1949 and, with that, of the phrase “respect and ensure respect in all circumstances” which ultimately found its place in Protocol I as the opening paragraph of Article 1, on “general principles and scope of application”. Note that he made no mention of the suggestion that Article 1 might (also) imply a role for third States not involved in an armed conflict. I also note, with pleasure, that he interpreted Article 1 as reflecting the non-reciprocal character of the obligations arising out of the Conventions; and, with some regret, that he believed this to have come about in 1949, whereas this interpretation of “respect in all circumstances” had been given already in 1929 (and been largely forgotten by 1949). Two things stand out from the above account of the drafting history of Article 1(1) of Protocol I. One, the Diplomatic Conference incontestably reaffirmed by its vote the terms of Article 1 of 1949, now also incorporated in the Protocol. Two, the Conference equally plainly failed utterly in fulfilling the expectation that it might shed light on the interpretation of these terms. Specifically, there was not a single reference to the suggested implications for third States; and the only real comment on the meaning of the text reverted to an interpretation of “respect in all circumstances” that dated back to 1929 rather than 1949. There is, in sum, almost nothing in the drafting history of Article 1(1) that could be relied upon one way or another in explaining the meaning of its text. Another element of the drafting history of Protocol I has a bearing on an entirely different matter. As related earlier, the authors of the comments on common Article 1 contended that the phrase “in all circumstances” made the application of the Conventions independent of the character of the conflict: “Whether a war is ‘just’ or ‘unjust’, whether it is a war of aggression or of resistance to aggression, the protection and care due to [the persons protected under the Conventions] are in no way affected.” In plain contrast with this contention, the debate at the Diplomatic Conference about the scope of application of Protocol I and, indeed, of the 1949 Conventions, largely turned precisely on these notions of “just” or “unjust” war, aggression or resistance, mainly in relation to wars of national liberation (and the war in Vietnam in particular). And while many delegates did support the thesis that even in such wars, the rules of humanitarian law must be applied by all sides regardless of the cause of the war, many others held the opposite view, maintaining that a people fighting for its liberation from colonial oppression could not be bound to respect rules that would hamper it in the conduct of its just war.

115 116

Ibid., para. 35. Text quoted in section 3.1.4, supra.

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In the end, it proved necessary to include in the Preamble to Protocol I a paragraph which excludes any argument that the Protocol or the 1949 Conventions “can be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations”; and another which reaffirms, the other way round, that their provisions “must be fully applied in all circumstances to all persons protected by these instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict.” The need to include this language effectively defeats the argument that common Article 1 once and for all had settled these issues. One last point: while the text of common Article 1 of 1949 was incorporated, and thereby reaffirmed, in Protocol I on international armed conflicts, no such thing happened with Protocol II on internal armed conflicts. It is far from me to suggest that, as a consequence, the principle of “respect and ensuring respect in all circumstances” does not apply in the situations of armed conflict that fall within the terms of that Protocol. Yet, the fact stands out that the delegates who negotiated Protocol II shied away from incorporating the principle in this first humanitarian law treaty written exclusively for situations of internal armed conflict. Their silence finally does away with the initial expectation of Pilloud and consorts, that the undertaking to “ensure respect in all circumstances” would prove an important instrument in promoting the cause of humanitarian law in situations of internal armed conflict by binding the insurgents to its terms – an expectation the authors of the comments on Article 1 of 1949 had given up earlier. The silence also stands in marked contrast to Resolution XXIII of the Teheran Conference, with its preambular reminder of States’ “responsibility to take steps to ensure the respect of [the Geneva Conventions] in all circumstances by other States…” Fortunately, many States not directly involved in internal conflicts feel no qualms about gently prodding the parties to respect the precepts of humanitarian law, in spite of the stern warning in Article 3 of Protocol II against any attempt at “intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs”. In sum, although the Diplomatic Conference of 1974-1977 adopted Article 1(1) of Protocol I and in so doing technically may be said to have “reaffirmed” the text of common Article 1, it did so only in the context of international armed conflicts and even then in such a nonchalant fashion that the participating States cannot seriously be said to have contributed to the strength and healthy development of the “measly little sprig” of 1949. 4.5 The ICRC Commentary on the Protocols of 1977 It took the ICRC nearly a decade to produce its Commentary on the Protocols of 1977: the original French version appeared in 1986, the English translation

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in 1987. Alexandre Hay, its then President, spoke in his Foreword with satisfaction of “the completion of a long task which is of particular importance to the ICRC.” The outcome of this “long task” was certainly impressive: a volume of over 1,500 closely printed pages: not much less than the total number of pages of the Commentaries on the four Conventions of 1949. Yet these Conventions together counted 429 articles (plus annexes), as compared to the 130 articles (plus annexes) of the Protocols. How did the ICRC see its role, and that of its staff members who wrote the comments? Did it believe, as on the earlier occasion, that “[a]lthough published by the International Committee, the Commentary is the personal work of its authors” and “only the participant States are qualified, through consultation between themselves, to give an official and, as it were, authentic interpretation” of the Conventions? As if in response to this question, the Foreword states that the ICRC “allowed the authors their academic freedom, considering the Commentary above all as a scholarly work, and not as a work to disseminate the views of the ICRC.” Academic freedom, scholarly work, no dissemination of ICRC views: it sounds almost too good to be true. In actual fact, the authors were staff members; every bit of text was discussed in a reading committee of staff members; a second version was examined by a small editing staff (again, staff members), and “then discussed with the author so that the substance – and to some extent, the form – could be harmonized with the other texts so as to ensure the greatest possible uniformity of the work.” It was then for the author “to draft a third version of the text, which is in principle that contained in the work.” After such a thorough treatment, the final text could be expected to be uniform in form as well as substance, i.e., doctrine. So much for academic freedom, one is inclined to say. Official interpretation left to States, no dissemination of ICRC views? The first point is not mentioned at all, the second largely contradicted by the explanation in the Foreword that the ICRC had decided to publish the Commentary “because it is conscious of its role as a guardian of international humanitarian law and is convinced of the importance of this work for those entrusted with implementing the Protocols or ensuring that they are widely disseminated, particularly among government and academic circles, and in Red Cross and Red Crescent circles.” An Editors’ note adds that the Commentary is based, beside the work of the Diplomatic Conference, on “other preparatory work”. Much of that was of its own making, though on the basis of consultations with government and other 117

Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, English version, p. xiii. 118 Text at note 85 supra. 119 Supra note 117. 120 Editors’ note, p. xxvi. 121 Ibid., p. xxv.

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experts. And as regards the influence of the non-ICRC experts, the General Introduction signed by Jean Pictet (who had taken over from Claude Pilloud after his untimely death in November 1984) informs us that the draft Protocols the ICRC had drawn up for submission to the Diplomatic Conference: took into account most of the views given by those consulted, though they did not follow them entirely, as the ICRC could not agree with them on all points. In some cases proposals put forward were contradictory, and it was necessary to make a choice. In other cases, when the requirements of the Red Cross so dictated, the ICRC had to take the initiative itself and assume full responsibility. In elaborating the basic texts, the ICRC endeavoured to remain true to the spirit in which it had always sought guarantees for the benefit of victims of conflicts, ever since 1864, as required by humanitarian considerations, but also, in order to be realistic, taking into account military and political constraints.

This description of the final phase in the “preparatory work” amounts to a surprisingly frank admission of bias in favour of the “requirements of the Red Cross” and “humanitarian considerations”. In “elaborating the basic texts” the ICRC evidently never pictured itself in the role of a rapporteur on the work of the expert meetings – a function which would have required a faithful reflection of all the various shades of opinion voiced by the experts. Not having been asked to act as such, and at a stage of the proceedings where governments still had the final word, it chose to weigh the outcomes of the meetings in the light of its own responsibility as guardian of humanitarian law. In the circumstances, the resultant humanitarian bias could certainly be regarded as justifiable tactics. As the quoted paragraph shows, even after the Conference the authors of the Commentary felt no shade of remorse at this earlier stance: the text breathes satisfaction at a job well done – so much so that one would not be surprised to find that a similar bias in favour of “humanitarian considerations” governed the process of writing, rewriting, editing and publishing the Commentary as well. It is not here the place to examine the four corners of the Commentary to find out to what extent this has in fact been the case. For my purposes, a close look at the text of the comments on Article 1(4) of Protocol I may suffice. The authors begin by reiterating the point made by Antoine Martin in the course of the Conference, that the ICRC had not repeated Article 1 in its draft Protocol. In their explanation: “As the Protocol is subject to the general provisions and principles of the Conventions, by virtue of the fact that it is an instrument additional to the Conventions, this general principle would have applied 122

123

Apart from the Conference of Government Experts, referred to supra in note 109, there had also been various private meetings and discussions with Red Cross experts. Supra note 117, p. xxxi.

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for the Protocol even if it had not been stated in so many words.” Drawing the consequence from this statement, they add that “[t]he Commentary on Article 1 of the Conventions continues to apply fully, and the reader is referred to it. We will merely reiterate the essential points below, adding a few new elements.” In view of what we found earlier in our reading of the four versions of the Commentary on the Conventions, the interesting question is: which version will we be referred to: the first one published, because it was the most extensive? Or a later one, because it suited present purposes better? And, of course, what new elements have been added? Not new is the division of the work into sections: as in the earlier Commentary on the Conventions, the comments are divided over the undertaking to respect, the phrase “to ensure respect”, and the concluding words “in all circumstances”. Stating that the undertaking to respect merely confirms the rule pacta sunt servanda, the authors conclude that “the import of this paragraph does not lie in the first part.” They add that the term “undertake”, “which appears only occasionally in the Protocol”, is “a more solemn turn of phrase” than “shall”, thus providing us with an unequivocal confirmation of their view of the text as containing an internationally binding obligation. The comment on the phrase “to ensure respect” reiterates that, at first sight, this too might seem to be superfluous. For, the duty to respect implies that of ensuring respect by civilian and military authorities, the members of the armed forces, and in general, by the civilian population as a whole. This means not only that preparatory measures must be taken to permit the implementation of the Protocol, but also that such implementation should be supervised. In this respect, the phrase “to ensure respect” essentially anticipates the measures for execution and supervision laid down in Article 80 (Measures for execution).

124 Ibid., p. 34: para. 36. 125 Ibid., p. 35: para. 37. 126 Interestingly, the footnote after the referral to the earlier Commentary does not refer to one or other of its versions but to the paper by Luigi Condorelli and Laurence Boisson de Chazournes, “Quelques remarques à propos de l’obligation de ‘respecter et faire respecter’ le droit international humanitaire en toutes circumstances”, in C. Swinarski. (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge, en l’honneur de Jean Pictet (1984) pp. 17-35; see also infra text at note 148. 127 Op. cit. note 117, paras. 39, 40. 128 Ibid., p. 41. Art. 80 prescribes “all necessary measures for the execution of [the] obligations under the Conventions and this Protocol”, and enjoins “The High Contracting Parties and the Parties to the conflict” to “give orders and instructions to ensure observance of the Conventions and this Protocol, and [to] supervise their execution.”

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However, there is more to it: “the phrase ‘to ensure respect’ should also be considered to reflect another aspect, which is described in the Commentary on the Conventions” – and the quotation that follows refers the reader, not to the firstpublished version but to the third. Why to that one? In effect, it is the only one which does not read “may and should” but merely “should”, thereby laying extra emphasis on the latter term as the crucial verb defining the role of third States in the promotion of respect for humanitarian law by their colleagues involved in an armed conflict. Of course, “should” is not the same as “shall”: it may be a mere admonition, or a weak sort of obligation. As the Commentary explains, the ICRC regards it in the first place as a ground to prod States to take an active part in the promotion of humanitarian law. In the next paragraph, it goes one step further, however, making its intentions clearer: Finally, and most importantly, the Diplomatic Conference fully understood and wished to impose this duty on each Party to the Conventions, and therefore reaffirmed it in the Protocol as a general principle, adding in particular to the already existing implementation measures those of Article 7 (Meetings) and 89 (Co-operation).

129 “In the event of a Power failing to fulfil its obligations, each of the other Contracting Parties, (neutral, allied or enemy) should endeavour to bring it back to an attitude of respect for the Convention. The proper working of the system of protection provided by the Convention demands in fact that the States which are parties to it should not be content merely to apply its provisions themselves, but should do everything in their power to ensure that it is respected universally.” Ibid., para. 42. 130 See also supra section 3.2. 131 Commentary, p. 36, para. 43: “This interpretation was not contested and it is on this interpretation that the ICRC has taken a number of steps, confidentially or publicly, individually or generally, to encourage States, even those not Party to a conflict, to use their influence or offer their cooperation to ensure respect for humanitarian law. Leaving aside any bilateral or multilateral measures taken by States, which rarely become known, it should be pointed out that the organized international community has frequently and emphatically manifested its concern that humanitarian law should be respected.” 132 Ibid., paras. 44, 45. Arts. 7 and 89, referred to in the quoted text, read as follows: Art. 7 – The depositary of this Protocol shall convene a meeting of the High Contracting Parties, at the request of one or more of the said Parties and upon the approval of the majority of the said Parties, to consider general problems concerning the application of the Conventions and of the Protocol. Art. 89 – In situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter.

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It may be evident from the earlier discussion of the work of the Diplomatic Conference that the (incontestable) reiteration and (merely technical) reaffirmation of the text of common Article 1 in Protocol I cannot seriously be claimed to express anything like a full understanding and wish of that Conference with respect to a text they were simply repeating verbatim. There was, moreover, noone at the Conference who ever ventured to suggest that the text contained a “duty” for States to do what the ICRC wishes them to do. The Commentary adds with apparent regret that “[neither] the Diplomatic Conferences which drafted the Conventions and the Protocol, nor these instruments, defined very closely the measures which the Parties to these treaties should take to execute the obligation to ‘ensure respect’ by the other Parties”, other than by means of the examples of Articles 7 and 89. I would have been greatly surprised had this been otherwise, given that no-one at the Conferences of 1949 or 1977 ever discussed the text of the Article in terms even remotely resembling the ICRC interpretation, let alone that they qualified it as an obligation, as the ICRC now openly does, finally letting the cat out of the bag. Of interest is how the Commentary then goes on to indicate limitations to the actions States may legitimately take to promote respect for humanitarian law by parties to an armed conflict. Since these limitations would apply irrespective of whether the actions are in execution of an obligation or on the basis of a right, they deserve to be quoted here. They are: those imposed by general international law, particularly the prohibition on the use of force. Even if the United Nations were to take coercive measures involving the use of armed force in order to ensure respect for humanitarian law, the limitation would be that of the very respect due to this law in all circumstances. It suffices to say that whenever such measures are necessary, each Party to humanitarian law instruments should examine the wide range of diplomatic or legal measures which can be taken to ensure respect for that law.

The limitations suggested here on individual or collective activities for the promotion of humanitarian law are very sound advice indeed. One might wish to see an organ like the Security Council heeding it, as the text goes, “in all circumstances”. The phrase “in all circumstances”, is next in line for comment. In broad terms, it “prohibits all Parties from invoking any reason not to respect the Protocol as a whole, whether the reason is of a legal or other nature.” Specifically, questions of “just” or “unjust” wars, aggression or self-defence, should not affect the application of the Protocol: “this type of discrimination is explicitly prohibited 133 134 135

Commentary, pp. 36-37, para. 46. Ibid. Ibid., p. 37-38, paras. 49-51.

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by the fifth paragraph of the Preamble.” In a similar vein, “Any idea of reciprocity should also be discarded, viz., a Party should be prevented from claiming to be exempt from the obligation to respect a particular provision, or the Protocol as a whole, because an adversary had not respected this provision or the Protocol as a whole.” The ICRC commentators make good here what their predecessors in their comments on the 1949 Conventions had neglected to say. With negative reciprocity thus excluded, “this does not apply to the type of reciprocity which could be termed ‘positive’, by which the Parties mutually encourage each other to go beyond what is laid down by humanitarian law.” A most ambitious reading, this, of the notion of positive reciprocity: one normally would be satisfied, and regard it as an instance of positive reciprocity, if one party decides to (continue to) respect the law because its adversary is doing the same. But of course, going beyond mere obligation would be even more positive. Reverting to a more modest mode, the comment recognises that “the concept of reciprocity on which the conclusion of any treaty is based also applies to the Conventions and the Protocol: they apply between the Parties which have consented to be bound by them.” 4.6 Evaluation Beginning at the end, the ICRC comments on Article 1(1) of Protocol I may be fairly positively assessed, if only because they no longer exude the exuberance that characterized the comments on common Article 1 of 1949. Yet some degree of “bias in favour of humanitarian considerations” is evident. There is the selective referral to the Commentary on the Third Convention, speaking only of “should” (legal obligation?) where the earlier and later Commentaries all had “may and should” (legal permission plus moral exhortation). There is the unexplained shift from “should” to “duty”, to “obligation”. And there is the vain attempt to make us believe that the Diplomatic Conference “fully understood and wished to impose this duty on each Party to the Conventions”, whereas the records show that the Conference was hardly aware of the fact that they were reaffirming common Article 1 at all (with everybody’s attention going to the hot issue of wars of national liberation).

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The final paragraph of the comments on Art. 1 elaborates the point: “The prohibition against invoking reciprocity in order to shirk the obligations of humanitarian law is absolute. This applies irrespective of the violation allegedly committed by the adversary. It does not allow the suspension of the application of the law either in part or as a whole, even if this is aimed at obtaining reparations from the adversary or a return to a respect of the law from him. This was confirmed quite unambiguously in Article 60 of the Vienna Convention on the Law of Treaties, which lays down under what conditions a material breach of a treaty can permit its suspension or termination; that article specifically exempts treaties of a humanitarian character.”

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Much more clearly than in the earlier Commentaries, the authors of the Commentary on the Protocols declare themselves in favour of the thesis that a State’s undertaking “to ensure respect” obliges it to take action against other States that do not fully respect the rules of humanitarian law; and obliges it as a matter of international law, not just as a moral duty. They fail to convince me, though: there is nothing in the published records of the Conference that supports their contention. Having said that, there are other aspects to the comments which I regard as quite positive: notably, the way the authors handle the matter of reciprocity, and their admonishment about limitations on legitimate actions aiming to promote respect for humanitarian law but involving recourse to force. This last bit in particular should be on the desks of all decision-makers considering such activities, to avoid the effect of human disaster resulting from ill-considered humanitarian action. This section dealt not only with the ICRC Commentary on the Protocols of 1977: it started out with the Conference of Teheran, and it referred in passing to the Diplomatic Conference of 1974-1977. What about the role of States in clarifying the issue of the true significance of Article 1? Here we can be exceptionally brief: if there was such a role, they have very cleverly hidden it. The very few words government representatives spent on the issue were either too vague or too noncommittal to permit any conclusion, other than that they were thinking of other things at the time. Never did they utter a word in support of the contention that they accepted as a legal obligation, a “duty” to ensure respect by their colleagues. 5

Harvesting: Concluding Remarks

After the above in-depth discussion of the genesis and fate of common Article 1 up to the late seventies, it is now time to turn briefly to the past two decades, and first, to the dictum of the International Court of Justice in the Nicaragua case concerning violations of humanitarian law committed by the contras in their protracted armed struggle against the Sandinista Government and the question of responsibility of the United States for those acts. One problem facing the Court was that the United States in accepting its jurisdiction, had excluded “disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States specially agrees to jurisdiction.” Since the United States had shown no inclination to “specially agree” to the Court’s jurisdiction in this case, the Court saw itself forced to base its argumentation exclu137 138

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Rep. (1986) p. 14. Ibid., as quoted in the Judgment, para. 42; p. 31.

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sively on customary international law, including such rules of treaty law as it believed it could regard as a reflection of customary law. Among the latter rules the Court found common Articles 3 and 1 of the Geneva Conventions. It held that the rules defined in Article 3, apart from being applicable in internal armed conflicts, “also constitute a minimum yardstick” for international armed conflicts, as well as being “rules which, in the Court’s opinion, reflect what the Court in 1949 called ‘elementary considerations of humanity’” – so that it “[found] them applicable to the present dispute, and [was] thus not required to decide what role the United States multilateral treaty reservation might otherwise play in regard to the treaties in question.” Turning next to Article 1, it stated that: there is an obligation on the United States, in the terms of Article 1 of the Geneva Conventions, to “respect” the Conventions and even “to ensure respect” for them “in all circumstances,” since such an obligation does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression.

From this it concluded that the United States was under “an obligation not to encourage persons or groups engaged in the conflict in Nicaragua to act in violation of the provisions of Article 3 common to the four 1949 Geneva Conventions …” Given the US reservation, the Court could not derive this “obligation not to encourage” from Article 1 as a treaty provision; nor did it say that States Parties to the Conventions are under an obligation to ensure that other States respect their rules of humanitarian law. Yet there is a tendency to read this into its dictum; to my mind, without justification: there is a considerable distance between the negative duty to refrain from encouraging people on your side to disregard the law, and a positive duty to induce people on the other side of the fence to respect the law. Did the Court perceive in common Article 1 the expression of an existing rule of customary law? The quoted text speaks, rather, of “the general principles of humanitarian law to which the Conventions merely give specific expression.” One wonders: was the Court referring here to (a special branch of ) the “general principles of law recognized by civilized nations”, mentioned in Article 38(c) of its Statute as one of the sources of law it must apply? Textually, this is not at all implausible; after all, virtually all States, and therefore certainly all those that may be regarded as civilized, are parties to the Conventions and thus may be assumed Ibid., para. 218, p. 114. The Court referred to its Judgment in Corfu Channel, Merits, ICJ Rep. (1949) p. 2. 140 Supra note 137 para. 220. 141 Ibid.

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to “recognize” any “general principles of humanitarian law” underlying the “obligation” of Article 1. Yet the Court failed to specify which “general principles of humanitarian law” might be involved here. In the absence of such elucidation, for instance, in the shape of a catalogue of the relevant principles, its sweeping statement amounts to nothing more than the assertion that Article 1, along with the other provisions of the Geneva Conventions, reflects customary law. That this assertion is not free from doubt was emphasized already by Judges Roberto Ago and Sir Robert Jennings in their Separate resp. Dissention Opinions. Ago expressed his reluctance “to be persuaded that any broad identity of content exists between the Geneva Conventions and certain ‘fundamental general principles of humanitarian law’, which, according to the Court, were preexistent in customary law.” In an equally sceptical vein, Jennings referred to his “very serious doubts whether [the] conventions could be regarded as embodying customary law.” The Nicaragua Judgment is a typical instance of the Court wanting to see customary law and therefore finding it, without adducing any proof for its finding. Even so, it did not find much: the “obligation” not to encourage persons or groups engaged in an armed conflict in a neighbouring State to act in violation of the provisions of common Article 3 amounts to little more than a confirmation of the well-established principle of non-intervention – a principle particularly dear to the hearts of Latin Americans, especially in their relations with their big brother in the North. The Court, in other words, did not even get close to affirming the thesis that Article 1 lays upon the States parties to the Geneva Conventions an obligation of what might be termed “humanitarian intervention”. 142 P. 181, at p. 184. Ago entertained “serious reservations with regard to the seeming facility with which the Court – while expressly denying that all the customary rules are identical in content to the rules in the treaties (para. 175) – has nevertheless concluded in respect of certain key matters that there is a virtual identity of content as between customary international law and the law enshrined in certain major multilateral treaties concluded on a universal or regional plane. [Thus, he was] most reluctant to be persuaded that any broad identity of content exists between the Geneva Conventions and certain ‘fundamental general principles of humanitarian law’, which, according to the Court, were pre-existent in customary law, to which the Conventions ‘merely give expression’ (para. 220) or of which they are at most ‘in some respects a development’ (para. 218).” 143 P. 528, at p. 537. Jennings continued: “Even the Court’s view that the [rules of ] common Article 3, laying down a ‘minimum yardstick’ (para. 218) for armed conflicts of a non-international character, are applicable as ‘elementary considerations of humanity’, is not a matter free from difficulty.” 144 An openly critical analysis of the Court’s reasoning on the matter of responsibility of the U.S. for the acts of the contras is found in the Judgement of 15 July 1999 of the ICTY Appeals Chamber in the Tadić case, Part IV, paras. 99-145. Case No. IT-94-1A, 15 July 1999.

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The Palestinians and their supporters are international actors who fervently adhere to this thesis. Their argument: by virtue of common Article 1, all States, and particularly those with close relations with Israel, are under an obligation to ensure that Israel respects all the rules of the Fourth Convention relative to military occupation. In support of their contention, they rely squarely on the ICRC Commentaries to the Conventions. Their interest was and is, of course, to see that Israel remains under constant international pressure to relinquish the territory it keeps occupied. Given that interest, they may be forgiven for accepting the ICRC stance as gospel truth. Of greater, indeed academic, interest are the views developed by Luigi Condorelli and Laurence Boisson de Chazournes in 1984 in their contribution to the volume of studies and essays in honour of Jean Pictet. They too interpreted the comment on common Article 1 in the ICRC Commentaries as the expression of a legal obligation. Regarding it as diplomatically confirmed by the adoption of Resolution XXIII of the 1968 Teheran Conference and again with the vote for Article 1(1) of Protocol I in 1977, they added that, unfortunately, there was no consistent practice of States in applying the Article, and the ICRC frequently appeared reticent in expressly asking for State action on the basis of Article 1. Even so, they saw a solid basis for the conclusion that there exists “a principle of general international law that obliges all States to ‘ensure respect’ for humanitarian law.” Note that the authors used this phraseology well before the Court had 145

In a discussion I had several years ago with representatives of the Palestinian human rights organization, Al Haq, they showed great surprise at my criticism of the ICRC position, and were not really prepared to take it seriously. 146 Supra note 126. 147 Ibid., pp. 26-29. 148 Ibid., p. 29 (my translation). The relevant text reads as follows: On peut conclure que l’impossibilité de rassembler un nombre élevé d’éléments constitutifs de la pratique internationale ne doit pas être mal évaluée. Les quelques éléments fort suggestifs qu’on vient de mettre en lumière, joints à l’absence de contestations concernant la légitimité (et non pas le bien-fondé) des démarches prises par des Etats tiers à un conflit auprès des Parties à celui-ci en vue du respect du droit humanitaire, constituent une base suffisante en l’espèce pour affirmer l’existence d’un principe de droit international général comportant l’obligation pour tous les Etats de ‘faire respecter’ le droit humanitaire. Ce qui a été soutenu précédemment … à propos de l’obligation de ‘respecter’ doit alors, à la lumière de ces remarques, être réitéré mutatis mutandis pour ce qui est de l’obligation de ‘faire respecter’. Le principe de droit international général imposant une telle obligation influence de façon marquée le jeu des normes auxquelles elle se réf ère. Cette obligation pèse, en effet, sur tous les Etats pour ce qui est du respect du droit humanitaire coutumier par tout autre Etat. Concernant le respect des normes humanitaires de caractère strictement conventionnel, l’obligation en question pèse sur l’ensemble des Etats Parties à la convention à l’égard de tout Etat Partie lui aussi à la même convention.

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rendered its Judgment in the Nicaragua case; did the Court perhaps borrow the phrase from them? The authors went on to explain that since each State owes respect of humanitarian law to all other States, every State had a legal interest to require that its colleagues meet their humanitarian obligations; as set forth in the Judgment of the International Court of Justice in the Barcelona Traction case, these are obligations erga omnes. But beyond this legal interest and, therefore, right of each State, it was also its duty to act in order to obtain due respect of humanitarian law. The authors noted the paucity in the Conventions and Protocol I of means for the implementation of what they indicated as a “right-duty” (“droit-devoir”); reason why they themselves supplied an interesting catalogue of possible ways for States to meet their “right-duty” under common Article 1. And they concluded that by virtue of Article 1, the humanitarian obligations of States possess specific characteristics that profoundly influence their functioning; characteristics that stem from the categorical nature of these obligations and the interest the international community as a whole has in their respect. Theodor Meron, writing after the Nicaragua Judgment, is reticent about the customary law character of common Article 1. He sees no evidence that “when the Geneva Conventions were adopted [...] the negotiating States believed that they were codifying an existing principle of law.” Moreover, the occasional subsequent practice of States in appealing to other States to respect the Conventions “may merely indicate that [they] are complying with their treaty obligation ‘to ensure respect’ for the Conventions” and therefore may provide “little support for the customary law nature of the norms implicated.” Then also, “the reach of the duty ‘to ensure respect’ is not entirely clear”. Meron regards “the Court’s opinion that the United States may not encourage persons or groups engaged in the Nicaraguan conflict to act in violation of 149 Ibid., p. 29. In the words of the authors: “Par le jeu de l’article 1 … l’obligation de respecter le droit humanitaire général rend donc chaque Etat débiteur du respect de ce droit à l’égard de tous les autres. Ceci implique bien évidemment que tout Etat a un intérêt juridique, indépendamment de sa participation à un conflit déterminé, à exiger que les autres Etats s’acquittent de leurs obligations humanitaires. Autrement dit, ces obligations semblent appartenir à la catégorie des obligations erga omnes auxquelles se réf ère en des termes généraux le célèbre obiter dictum de l’arrêt de la Cour internationale de justice concernant l’affaire de la Barcelona Traction.” 150 Ibid., p. 32: “L’article 1 des Conventions de Genève de 1949 et du Protocole additionnel I de 1977 conf ère aux obligations humanitaires des caractéristiques spécifiques qui en influencent profondément le fonctionnement. Ces caractéristiques trouvent leur source dans la nature particulière qu’imprime aux normes de droit humanitaire le principe grâce auquel les obligations qui en découlent sont inconditionnelles et leur respect intéresse la communauté internationale dans son ensemble.” 151 Meron, Human Rights and Humanitarian Norms as Customary Law (1989). 152 pp. 28, 30, referring to the Judgment of the ICJ in the North Sea Continental Shelf Cases, ICJ Rep. (1969) at p. 43.

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common Article 3 [as] indisputably correct”: this negative duty rests on the “principles of good faith and of pacta sunt servanda.” But apart from that, there is a positive duty: … the fundamental obligation implies that each State must exert efforts to ensure that no violations of the applicable provisions of humanitarian law (i.e. “to respect”) are committed, at the very least by third parties controlled by that State.

With the closing part of this sentence, Meron brings the matter back to the Nicaragua case and the question of whether the United States “controlled” the contras: not, according to the Court, to the extent necessary to hold the United States responsible for the violations allegedly committed by the contras; yet, plausibly, enough to hold that the United States should have exerted efforts to ensure that they did not commit such violations. It is interesting to juxtapose Meron’s views with those of an American judicial body, the Board of Immigration Appeals. Referring to an earlier paper in which Meron had already expressed the same view, the Board begs to differ: “the negotiating history of Article 1 suggests that the words ‘to ensure respect’ were intended primarily to obligate States to ensure respect of the Convention by its own civilian and military authorities.” Moreover, “it is doubtful whether Article 1 was intended to impose an affirmative duty on States of the nature argued by the respondent with regard to possible violations of Article 3 by other States, particularly those not under their control.” So, whereas for Meron the “affirmative duty” applies “at the very least” in respect of third parties under a State’s control (and therefore, perhaps, also beyond that limit), the Board doubts whether there is such a duty at all, and if so, certainly not with regard to parties not under a State’s control. Computing the two opinions, the conclusion may be that the “affirmative duty” may or may not exist, and if so, only with respect to parties under a State’s control. This brings me to the views I collected over the past years from various personalities involved with matters of international law. First, several legal advisers, when asked whether they regarded common Article 1 as imposing an obligation upon their governments to ensure respect of the Conventions by other States, all 153 154 155 156

Ibid., pp. 30-31. The reference is to the Decision of the Board in the Medina case, supra note 2. “The Geneva Conventions as Customary Law,” in 81 AJIL (1987) p. 348, at 354-355. The Board refers here to the ICRC Commentary on the Fourth Convention, which happens to be the only one of the four Commentaries to state bluntly that “[t]he words ‘in all circumstances’ which appear in [this Article] do not, of course, cover the case of civil war, as the rules to be followed in such conflicts are laid down by the Convention itself, in Article 3.” See supra section 3.2.

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answered in the negative. They did however believe that their governments, as parties to the Geneva Conventions, were definitely entitled to appeal to parties to armed conflicts to respect the applicable humanitarian law. I then asked the same question of Dr Yves Sandoz, top lawyer of the ICRC. Affirming that there was such a legal obligation, he defined its content as the “obligation for governments to consider seriously whether there is something they might do in respect of the situation” (not his literal words, but a fair rendering of what he said). An “obligation to consider” is not a particularly taxing one, to say the least. I finally discussed the question with Dr Cornelio Sommaruga, President of the ICRC. When I explained my view that no matter what common Article 1 does, it cannot be said to impose upon States a legal obligation to act against other States that fail in their respect of the Conventions, he agreed. He added: “No legal obligation but a moral one – and that is even more important.” This opinion I wholeheartedly share. With Dr Sommaruga, I believe that when it comes to reading into Article 1 any effect beyond the sphere of the State’s internal affairs, it lies in adding to the State’s right as a Party to the Conventions to make other States respect their terms, a moral incentive or “obligation” to do so. This duty is not confined to considering (“seriously”) whether the State – i.e., the political decision-makers – might undertake some action in respect of a situation of apparent disregard of humanitarian law somewhere in the world. It implies that in weighing the admittedly many factors involved in the process of decision making, the moral duty to “ensure respect” for international humanitarian law carries particular weight: the graver the “situation of apparent disregard”, the heavier the weight of this factor. And this not for political but for “humanitarian” reasons: the body of international humanitarian law is too precious for the States of this world to suffer its neglect or wilful disregard. Agreeing with Dr Sommaruga, I also posthumously agree with Frédéric Siordet and Claude Pilloud. True, their statement about the “other Contracting Parties (neutral, allied or enemy)” who, in the event of a belligerent Power failing in its duty to respect the Conventions, “may, and should, endeavour to bring it back to an attitude of respect” for the law was written in such a way that their successors at the ICRC could construe it as the expression of an international legal obligation. I am however convinced that what they were urging was a stringent moral duty for all States parties to protect the vulnerable body of humanitarian law the States had themselves erected. I add that in contrast to what they had apparently come to believe, this moral duty obtains as much in respect of internal armed conflicts as of international ones. The point remains that the primary legal obligation arising from common Article 1 is for States Parties to impose respect for the applicable rules of international humanitarian law, “in all circumstances”, on their armed forces, including armed groups under their control, and on their populations: for the implementation of this obligation they can be held legally responsible. No such legal liability

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attaches to their moral duty to endeavour to ensure respect by their peers. Since it is their right to do this under the law of treaties, they cannot be reproached for doing so either. But a failure to speak out, to appeal, to urge – in the last resort: to act, by way of humanitarian intervention – can be held against them as a shortcoming in the moral order that underlies the Geneva Conventions and, indeed, the whole of international humanitarian law. To conclude: If the international community is looking for a suitable “new millennium pledge”, the United Nations might consider the adoption of a solemn, moral “undertaking to respect and to ensure respect for international humanitarian law in all circumstances”. A combined General Assembly and Security Council resolution carrying this message would represent an unexpectedly valuable fruit of the insignificant seed planted fifty years ago in 1949.

Chapter 32 Will International Humanitarian Law Protect Tomorrow’s War Victims?

The question before this conference was whether the Geneva Conventions of 1949 protect war victims today. At the end of a daylong discussion of this topic, it is for me to leave the present day and look ahead: what about the protection of war victims tomorrow – and the day after tomorrow? It has often been said that it is impossible to predict the future. So, I will not try to do that. Yet, it seems a safe bet that there will be “wars” and, with that, war victims. It may also be assumed that at least in the early years of the next millennium, the instruments, devices and mechanisms for the protection of war victims will be the ones we know today – including those, like the Statute of the International Criminal Court, that are not yet in force. So, the question I am supposed to discuss really boils down to this other one: what protection may tomorrow’s war victims expect from the instruments, devices and mechanisms of today? Take the Geneva Conventions: what may be expected of them? I shall not discuss these instruments article by article, but I cannot resist the temptation to place a comment on their opening article: the famous common Article 1, with its undertaking to respect and to ensure respect for the Conventions in all circumstances. I predict that it will continue to be invoked frequently: by the ICRC, whenever it wants to gently prod governments to take an active stance in respect of gross violations of international humanitarian law in an ongoing conflict; or by parties interested in the Palestinian question, who wield Article 1 as a tool to make the Swiss government convoke conferences, so-called, about the general topic of application of the Fourth Convention in situations of military occupation. What I have just said implies that, apart from the Palestinian question (which I think we all hope will be settled before long), the national measures of implementation and enforcement of international humanitarian law prescribed in the Conventions and other international humanitarian law instruments will continue *

1

Concluding remarks offered at the end of British Red Cross Conference on “The Geneva Conventions of 1949: Do they protect war victims today?” London, 6 Oct. 1999. The term “war” is used here as synonymous to armed conflict and covering both international and internal armed conflicts.

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to be insufficiently applied to ensure anything like a satisfactory protection of war victims: in international armed conflicts and a fortiori in internal ones. Efforts must of course be made to improve the record of compliance on the domestic level. Education is a key word here, and at the same time an indication of where the difficulties begin: for instance, how to educate a population to respect the other, when this may be a notion far beyond their comprehension and indeed in flagrant contrast with their living conditions? An enormous amount of patient work remains to be done here, as it is actually done by the ICRC and national Red Cross and Red Crescent societies in various theatres of conflict. There is no reason to assume that these efforts could be terminated any time soon. Indeed, I submit that in our own, much happier societies the understanding among the general public of the basic precepts of international humanitarian law is slim at best. This is why a publication like Crimes of War, produced by Roy Gutman and David Rieff, is so very timely and, indeed, necessary. With all that, the need for active support for international humanitarian law on the international plane remains as urgent as ever. I need not repeat here once again that the ICRC is indefatigable in its efforts on this plane – they are so well aware of their uniqueness in this as in all other respects, we should not praise them too loud … Fortunately, the ICRC is not alone in its efforts to promote respect of international humanitarian law. First in line among the others is of course the adverse party. In the distant past, in situations of international armed conflict, such a party occasionally resorted to reprisals to induce its opponent to desist from further violations of applicable rules of international humanitarian law (or the “law of war”, as it was called in those days long gone by). Recourse to reprisals is now largely banned, most recently, in the first Additional Protocol of 1977, in the context of the rules on protection of the civilian population against the effects of hostilities. These rules, and indeed the very principle of distinction between combatants and civilians, appear to be at risk of becoming the area of least effectiveness of international humanitarian law. The UN Secretary-General, speaking on the 12th of August 1999 in Geneva (where, incidentally, he made his audience happy by announcing the long awaited appearance of his instructions for UN forces), was entirely justified in stating that today, “It is not … merely a question of protecting civilians in armed conflict, but protecting them from armed conflict.” And he referred to the practice of flagrant violations against civilians that “have taken place not as the effect of war, but as the essence of warfare.” If that is so, it is understandable that the categorical ban on reprisals against civilians is not readily accepted in all quarters. I submit that even where it seems to be accepted without protest together with the rest of Protocol I (and to the extent the issue is considered at all), this may be with the mental reservation that if need be, the ban may be simply set aside and all-out retaliation against the enemy civilian population resorted to. In the light of that quite realistic possibil-

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ity, I vastly prefer the statement (understanding, reservation) made by the United Kingdom (emulating the Italian example) that in certain well-defined situations and within well-defined limits measures of reprisal may be resorted to against the civilian population of the adverse party. Apart from reprisals and even more obviously, protests, what else might a belligerent party do in reaction to violations of international humanitarian law on the part of its adversary? I just mention one, still rather unusual step, for the interest it holds for the international lawyer. It is recourse to the International Court of Justice. Bosnia-Herzegovina saw fit to bring such a case, for genocide, against Yugoslavia (a gesture reciprocated by Yugoslavia). And Yugoslavia did the same, for a long list of war crimes, against the States that had participated in Operation Allied Force. Far be it from me to even touch upon the merits of these cases: my only point is that here we have an at least theoretically available means for States to hold their opponents responsible for systematic or massive violations of international humanitarian law. The means can of course be effective only if a valid basis of jurisdiction can be found. The utility of bringing such cases before the ICJ is moreover questionable, given the length of time and amount of money involved in any such procedure: decades may go by, and the coffers of the State become ever more depleted, before a judgment is at long last delivered. Both in international and internal armed conflicts, outside organisations and agencies may become engaged, or engage themselves, in many ways; and I am convinced that much store may be set by them also in the future. I already referred to the ICRC, and there is no need for me to mention this agency again. At an even higher level, politically speaking, we find the United Nations, and at the top of that organization for matters of life and death, the Security Council. 2

At ratification of Protocol I, on 28 Jan. 1998, the United Kingdom made the following statement: The obligations of Articles 51 and 56 are accepted on the basis that any adverse party against which the UK might be engaged will itself scrupulously observe those obligations. If an adverse party makes serious and deliberate attacks, in violation of Article 51 or Article 52 against the civilian population or civilians or against civilian objects, or, in violation of Articles 53, 54 and 55, on objects or items protected by those Articles, the UK will regard itself as entitled to take measures otherwise prohibited by the Articles in 1uestion to the extent that it considers such measures necessary for the sole purpose of compelling the adverse party to cease committing violations under those Articles, but only after formal warning to the adverse party requiring cessation of the violations has been disregarded and then only after a decision taken at the highest level of government. Any measures thus taken by the UK will not disproportionate to the violations giving rise thereto and will not involve any action prohibited by the Geneva Conventions of 1949 nor will such measures be continued after the violations have ceased. The UK will notify the Protecting Powers of any such formal warning given to an adverse party, and if that warning has been disregarded, of any measures taken as a result.

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Over the last few years, the Security Council has produced an impressive series of resolutions calling upon parties to armed conflicts to respect their obligations under the Geneva Conventions and other applicable rules of international humanitarian law. Nor is this all: it has sent out numerous expert groups, to take stock of the situation (as recently in East Timor) or to investigate alleged crimes (as repeatedly in the Iran-Iraq war of 1980-1988, with the experts establishing that Iraq had used chemical weapons). In 1992, it ordered the establishment of a commission of experts to collect and analyse all the available information about war crimes in the former Yugoslavia, and in 1993, acting under Chapter VII of the Charter, it followed this up with the establishment of the International Criminal Tribunal for the Former Yugoslavia – a step followed in 1994 with the International Criminal Tribunal for Rwanda. With an eye to the future, it is important to note that not all of these steps were equally effective. Resolutions are just that – the Dutch Parliament has often passed “motions” urging governments in distant parts of the world to behave more in line with what our parliamentarians regarded as correct conduct. Admittedly, Security Council resolutions carry a great deal more weight, and what is more, they may be reinforced by sanctions, increasing the pressure on the addressed State. That is fine. At the same time, the objections to such measures are wellknown – and are in effect quite similar to the reproach often levelled against reprisals, viz., that sanctions unavoidably do damage to innocent people while those responsible for the violations go scot-free. Then, the ad hoc Tribunals are not free from criticism either: there are questions about the competence of the Security Council to establish judicial bodies, and why were they established only for these two specific situations? Again, it takes ages for cases to be brought to a conclusion. And, most importantly with an eye to the future, their existence has not noticeably diminished the international humanitarian law violations in the areas concerned, let alone in other theatres of war. It is in particular this expectation of a deterrent effect of an international criminal court that I consider completely unfounded – or, to put it somewhat more mildly: that I fear may be exaggerated. The Security Council is not the only UN body that takes a part in the promotion of respect, or the enforcement, of international humanitarian law. Among other institutions, I confine myself to mentioning the Human Rights Division in Geneva, with Mrs Robinson, the High Commissioner for Human Rights, as its very active leader. It is indeed worthy of note that human rights bodies play an increasingly important role in the promotion of international humanitarian law. This may strike as strange, given the differences between the two branches of law. On the other hand, their basic precepts are not that dissimilar, and in particular the rules of international humanitarian law applicable in internal armed conflict and those relating to the protection of detained people have borrowed a great deal from human rights law.

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Just to illustrate the point, I may mention that the terms of reference of the Office of the High Commissioner for Human Rights in Bogotá, Colombia, expressly include alleged violations of international humanitarian law. The Office accordingly takes in individual complaints about such violations as well, and passes them on to the competent authorities. The complaints may be about acts of the armed forces, or of the guerrillas or paramilitary forces – although practice shows that in the latter cases fear of retaliation often keeps victims or their families from bringing their complaints to the Office. Similar reporting activities in the sphere of international humanitarian law may be seen since quite some time from NGOs: Human Rights Watch and, more recently and after some hesitation, Amnesty International. Human Rights Watch actually was the very first to publish a comprehensive, thoroughly researched and legally sound report on the events in the former Yugoslavia. At the time, Professor Robert K. Goldman was a legal adviser of Human Rights Watch. He subsequently became a member, and now is the president, of the Inter-American Commission for Human Rights. Traces of his presence in that Commission are visible in the decisions that body takes, in cases of alleged human rights violations arising out of situations of internal armed conflict in one or other Latin American country. It has by now become established practice for the Commission to openly refer to rules of international humanitarian law in interpreting provisions of the American Declaration and Convention on Human Rights. Well-known by now is its decision in the Tablada case, where it concluded that a violent activity that had raged for thirty hours in and around a military barracks in Argentina, in the middle of nowhere, qualified as an armed conflict. While this decision was met with amusement in some quarters, the point of interest in the case is the reason why the Commission had embarked on this road. It was to be able to conclude that violent acts of the military against the rebels, which had resulted in the death of some of them, did not constitute violations of the right to life since they were legitimate acts of war. The Inter-American Commission has since travelled further down this road, deciding in several cases that government forces actually had violated Article 3 common to the Geneva Conventions, and in a case concerning El Salvador that was party to Protocol II, Article 4 of that Protocol as well. The primary decision remains in all these cases that relevant provisions of the American Convention had been violated. Yet the Commission no longer utilises the rules of international humanitarian law solely as tools for the interpretation of the human rights provisions but, especially in non-contentious cases (that cannot end up in the Inter-American Court of Human Rights), even as independent grounds for holding the government responsible and suggesting remedies. In such cases, the Commission may be said to be directly “applying” the rules of international humanitarian law. The Commission does this against the government; but what about the other side? Here, of course, lies a limit to its possibilities: the Commission is painfully

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conscious of its lack of competence to take on cases of alleged violations by nongovernmental parties; this while it is only too well aware that a large part of the international humanitarian law violations are committed by the latter parties. In this respect, the Inter-American Commission finds itself in much the same position as, say, Human Rights Watch: only in its country reports can (and does) the Commission report on violations on all sides. Thus, the most recent of these reports, its third country report on Colombia, deals extensively with violations by the armed forces, the police, each of the guerrilla movements, and each of the paramilitary groups separately. This is as much as the Commission can do. In my submission, it is a great deal. It shows how serious it takes the matter of promoting respect for, and effectiveness of, international humanitarian law. Admittedly, none of its decisions or reports are binding: not upon governments, much less upon other parties to the armed conflicts that are (or, for the most part, were) waged in the area; but the same criticism applies to the efforts of virtually all other bodies that are actively promoting the cause of international humanitarian law. And the Commission, a widely respected, authoritative, intergovernmental body, regularly publicises its decisions and reports in the media, including the electronic ones, thus seeking maximum effect of its efforts. It should be commended for this, and its example deserved to be followed in other regions – even if, as in the case of the Commission, a formal mandate might be lacking. The practice of the Inter-American Commission shows two further features that, again with an eye to the future, may be considered of great importance. One is the role of individual complaints. I am aware that the ICRC does accept such complaints, but it does so for another purpose than the one sought by human rights agencies. Distinctive elements in the latter practice are not only the publicity that may eventually be given to their findings but, more importantly, the satisfaction sought for those entitled to it, be it in the shape of punishment of the actual perpetrators or compensation paid out to the victims. The jurisprudence of the Commission, as of other human rights organs, shows many examples of such recommendations, and in the case of the Commission, including as a consequence of its finding that provisions of international humanitarian law have been violated. All of this is of relevance only with regard to internal armed conflicts. Unfortunately, it is quite likely that these are precisely the type of armed conflict that we will continue to see most frequently in the foreseeable future. They at the same time tend to be the worst conflicts, with least respect for international humanitarian law. If human rights bodies can contribute even a little bit to improvement of that situation, they are more than welcome to do so. Why have I said no word thus far about the International Fact-Finding Commission? The simple reason is that although it effectively exists since 1991, it has never been able to show its capabilities in practice. Of course, it should be recognized that the Commission was created for international armed conflicts,

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and its structure probably lends itself best for that type of conflict. But we have declared ourselves willing to accept requests for investigation of alleged violations of international humanitarian law or good offices in situations of internal armed conflict as well. And quite recently, we have begun to wonder whether it might not be a good idea for the Commission to invite individual complaints, if only as a device to open the doors to the parties that have to accept our services.  What will come of all this, like all the rest of what I have been saying, rests in the lap of the gods. I for one am continually keeping my fingers crossed! Finally: when you ask me: will the Geneva Conventions, or, rather, the entire body of international humanitarian law, be faithfully respected in times to come: probably not, or at any rate not faithfully enough. Will they be promoted, even enforced: oh yes, more and more, I believe. Just three weeks ago, the Security Council adopted a resolution by which it “strongly condemns the deliberate targeting of civilians in situations of armed conflict as well as attacks on objects protected under international law, and calls upon all parties to put an end to such practices”, and it “urges all parties concerned to comply strictly with their obligations under international humanitarian, human rights and refugee law, in particular those contained in the Hague Conventions of 1899 and 1907 and in the Geneva Conventions of 1949 and their Additional Protocols of 1977, as well as with the decisions of the Security Council.” Let us hope that the net result of this as of all other efforts will be a greater effectiveness of the law and, with that, a less inhumane period than we have witnessed these last few decades. Or, to quote the phrase by which President Clinton in 1999 concluded his brief message on the occasion of the 50th anniversary of the Geneva Conventions: “Best wishes for a memorable observance.” A sound bite, to be sure, but on closer inspection, not a bad wish either!

3

At the time, I was acting as President of the Commission: hence, the “we”.

PART 6 reprisals and fact-finding

Chapter 33 Reprisals in the CDDH*

The Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, convened in 1974 at Geneva on the invitation of the Swiss Government, has just terminated its third (1976) session. A fourth session is scheduled to take place from March-June, 1977. It is hoped that this fourth session will also be the final one, but it remains to be seen whether matters will turn out that way. As of today, the three main Committees which each deal with a part of the two draft Protocols on humanitarian law the plenary Conference assigned them, have succeeded in resolving a number of the problems they found on their path. Other problems have not yet been taken up because the draft articles concerned did not come up for discussion. Other problems, again, have been tackled by the competent Committees but not yet been brought to a solution, either because they were found to be connected with articles still to be discussed or because they proved so difficult that no satisfactory solution could yet be achieved. One of this last class of problems, and one that moreover affects all three main Committees, is that of reprisals. As this is a subject that has retained both Professor Röling’s and my attention for a number of years, it may be worthwhile to pay some attention to the discussions which have thus far been devoted to it in this Conference (which, after its French abbreviated title, has meanwhile come to be known as the CDDH). The two draft Protocols referred to above are, respectively, the “Draft Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts” and the “Draft Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts”; cumbersome titles, which in the practice of the Conference have come to be replaced *

1

The paper, written in 1976, was published in R.J. Akkerman, P.J. van Krieken & C.O. Pannenborg (eds.), Declarations on Principles: A Quest for Universal Peace – Liber Amicorum Discipulorumque Prof. Dr. Bert V.A. Röling (1977) pp. 195-216. On the subject of belligerent reprisals, see my Belligerent Reprisals (1971). The division of labour between the three Committees was as follows: Committee I – opening and closing parts of the Protocols as well as all matters of a general nature; Committee II: the wounded and sick, medical matters; Committee III: the conduct of war and the protection of the civilian population.

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with the far shorter indication of Draft Protocol I and Draft Protocol II. It may be added that the official titles are not only too cumbersome for daily use but also misleading: in actual fact, both draft Protocols are additional, not only to the Geneva Conventions of 1949, but at least as much to those parts, long outdated, of the Hague Regulations on Land Warfare of 1899/1907 which deal with the general rules of warfare on land and combatant behaviour. The implications of all this for our subject are twofold: not only did the matter of reprisals come up for discussion both in the context of international and internal armed conflicts, but it had to be dealt with in connection with parts of the law of armed conflict where the international community had on earlier occasions showed itself quite determined to leave the matter alone. So as not to get entangled in all too many complications, I shall confine myself in this paper to the question of reprisals in international armed conflicts and, hence, in Draft Protocol I. The three main Committees came across the question as follows: Committee I, as part of the general problem of enforcement and sanctions; Committee II, in discussing the extension of the protection afforded by the Geneva Conventions to certain medical services and installations not covered by those Conventions; and Committee III, in the context of its discussions on the protection of the civilian population against the effects of hostilities. Not surprisingly, Committee II encountered the least difficulties: it simply pursued the policy, set out in the Geneva Conventions, of including among the rules of purely Red Cross or “medical” law that it elaborated a categorical ban on reprisals against the persons and objects those rules sought to protect. It is worth noting – and indeed deserves some emphasis – that this policy went unchallenged in the Committee; for, as is well known, the very system of categorical bans on reprisals as embodied in the Conventions has not remained without criticism. We shall have occasion to revert to this at a later stage. In Committee III, the issue of reprisals came up already during the first (1974) session, in the course of the debate on draft Article 46 dealing with the general protection of civilians and the civilian population. The draft text prepared 2 3 4

5

The texts of the draft Protocols were published by the ICRC in June 1973; a Commentary followed in October of that year. The reference is to the Conference of Brussels of 1874 and the Hague Peace Conferences of 1899 and 1907; see op. cit. note 1, p. 45 et seq. The first prohibition of reprisals is found in Art. 2(3) of the 1929 Prisoners of War Convention; in 1949, prohibitions of reprisals were included in all four Conventions: Convention I (Wounded and Sick) Art. 46; Convention II (Wounded, Sick and Shipwrecked) Art. 47; Convention III (Prisoners of War) Art. 13(3); Convention IV (Civilians) Art. 33. A prohibition of reprisals is also contained in the Hague Convention of 1954 for the Protection of Cultural Property, Art. 4(4). Art. 20: “Reprisals against the persons and objects protected by this Part [of draft Protocol I] are prohibited”.

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by the ICRC contained a paragraph 4 which spelled out that “[a]ttacks against the civilian population or civilians by way of reprisals are prohibited.” In the debate, it soon became apparent that the majority was strongly in favour of the proposed prohibition. But there was also some opposition to the idea, ranging from hesitation and concern to outright rejection of the proposed ban. The most outspoken opponent was the delegate of France, Mr. Girard: he preferred to see the paragraph deleted; alternatively, it should be amended to allow for recourse to reprisals in certain circumstances and subject to certain conditions. Such recourse, he felt, should remain permissible in case of grave violations of the Protocol, provoking a reaction on the part of the victims which their Governments would find hard to resist. He listed the following conditions: decision on the governmental level, advance warning, and proportionality. He did not however transform these ideas into a formal amendment to draft Article 46(4). In the course of the second session, Committee III adopted the proposed paragraph by consensus. It bears some emphasis that the report of the Rapporteur on the deliberations of its Working Group makes mention of no particular opposition which the text as proposed by the ICRC might have encountered in that forum, and neither is there any mention of reservations which delegations might have expressed with respect to the proposed ban. Prior to the adoption of the quoted paragraph, two important further developments had occurred at an early stage of the second session. Firstly, Committee III had discussed draft Article 47 on the protection of civilian objects, and in the course of this discussion a majority had demonstrated its determination to add to the proposed text a clause prohibiting reprisals against such objects as well – a clause which did not figure in the ICRC draft. And the French delegation had submitted an amendment to insert in a completely different Part of the draft Protocol an Article 74bis which purported to render recourse to reprisals permissible in certain circumstances. Viewed together, these two developments demonstrated a clear polarization of the issue. It appears therefore useful to have a closer look at each of them. 6

7

8 9 10 11 12

CDDH/III/SR.7 (13 March 1974): para. 5 (Mr. Fleck, FRG); para. 28 (Mr. Castrén, Finland); SR.8 (19 March 1974): para. 7 (Mr. Eide, Norway); para. 10 (Mr. Blix, Sweden); para. 38 (Mr. Palacios Trevina, Mexico); para. 76 (Mr. Dixit, India); para. 83 (Mr. Tranggono, Indonesia). CDDH/III/SR.7 (13 March 1974): para. 38 (Mr. Samuels, Canada); SR.8 (19 March 1974): para. 21 (Mr. Ogola, Uganda); para. 34 (Mr. Cameron, Australia); para. 50 (Sir David Hughes-Morgan, UK). CDDH/III/SR.8 (19 March 1974), para. 56. CDDH/III/SR.24 (25 Feb. 1975), para. 14. CDDH/III/224. CDDH/III/SR.14-16 (6, 7 and 10 Feb. 1975), passim. CDDH/I/221.

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In the draft Protocol, the ICRC had deliberately refrained from proposing a prohibition of reprisals against civilian objects. As explained by the representative of the ICRC, Denise Bindschedler-Robert, a general ban on reprisals against civilian objects, besides the one it was proposing on reprisals against civilians or the civilian population, would lead to a situation where no possibility was left of carrying out reprisals under this part of the law of armed conflict. The ICRC had understood that such a complete exclusion of permissible reprisals in this context would meet with strong opposition and, in fact, would be unrealistic. It had therefore preferred to leave some scope for reprisals where they would do least harm, i.e., against the generality of civilian objects, whilst proposing bans on reprisals against civilians or the civilian population as well as against certain categories of specially protected objects, viz., objects indispensable to the survival of the civilian population (Art. 48) and works and installations containing dangerous forces (Art. 49). It was apparent already from the amendments submitted with respect to draft Article 47 that many delegations wished to close the gap which the ICRC had thus left open. Among them was the Netherlands delegation, whose amendment to this effect was co-sponsored by Austria, Egypt, Mexico, Norway, the Philippines and the USSR. The present author had occasion to introduce the amendment in Committee III. In doing so, he explained why the sponsors considered the solution proposed by the ICRC only seemingly realistic: in practice, it would only rarely prove possible to confine reprisals to civilian objects alone; hence, the infliction of suffering on the civilian population would be virtually unavoidable and this would be as unacceptable here as in the case of reprisals against the civilian population itself. He added that in view of the function of genuine reprisals as a law-enforcing device, acceptance of the proposed categorical ban on reprisals against the civilian population and civilian objects alike would make it an the more urgent task for the Conference to continue its search for other mechanisms that could effectively contribute to enforcing the rules of armed conflict and especially those on the protection of the civilian population. Only few (Western) delegations expressed a contrary view, with some of them adopting the stand which France had taken a year ago: a prohibition of all reprisals would not prevent recourse to acts of retaliation and it was then better to regulate such recourse than to make it the object of a paper ban. Regulation might take the form of a qualified ban, prohibiting reprisals except in extreme circumstances where a Party to the conflict would be exposed to persistent attacks on its own civilians and civilian objects which did not cease despite repeated protests. In such a case of persistent violation of the Protocol, recourse to permissible reprisals would have to be subject to strict legal restraints. Strangely, the propo13 14 15

CDDH/III/SR.14 (6 Feb. 1975), para. 5. CDDH/III/57. CDDH/III/SR.14 (6 Feb. 1975, para. 26.

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nents of this view did not submit any amendments to draft Article 47. Instead, it was suggested that Part V of the draft Protocol, dealing with enforcement measures, would be the right place to deal with this matter. This was exactly the course taken by France (which had remained utterly silent in the above debate in Committee III) when it submitted its amendment proposing a draft Article 74bis. The text was divided into two paragraphs: one stating in the most general terms that reprisals would be prohibited under the Protocol, and the second taking back most of the significance of this declaration by laying down that “in the event of a belligerent State infringing the regulations laid down by the present Protocol and the State victim of that breach considering the violation to be so serious and deliberate as to render it imperative to call upon its perpetrator to respect the law”, the prohibition contained in paragraph 1 could be waived on four conditions: no other means of putting an end to the violations, decision by the Government, due warning, and prohibition to exceed the extent of the breach which the measures are designed to end. Why did France introduce this proposal as an amendment to Part V of the draft Protocol rather than to Article 47 (or, for that matter, to Articles 4649)? The reason seems to purely have been one of conference tactics: evidently convinced that its ideas would stand little or no chance in Committee III, the French delegation may have anticipated a somewhat more sympathetic reception in Committee I charged, inter alia, with Part V on the “Execution of the Conventions and of the present Protocol”. Ground for such a more hopeful perspective might be the difference in attitude: while in Committee III the discussions usually bore a predominantly technical character, with experts of various disciplines trying to balance humanitarian and military values and thus find generally acceptable solutions for what they perceived as technical problems first of all, in Committee I the political element was far more predominant both in the composition of the delegations (for the most part diplomats and lawyers from the ministries of foreign affairs) and in the issues before it and the manner these were dealt with. As for the first part of the above speculation, it was soon apparent that the French ideas were indeed unacceptable to the great majority of those taking part in the work of Committee III. Indeed, the clash of opinions was far more vehement in its Working Group than it had been in the introductory discussion in Committee. In part at least, this was due to the fact that the Committee’s Rapporteur, Mr. Aldrich (USA), who also chaired the meetings of the Working Group, was himself an outspoken opponent of a general ban on reprisals against civilian objects as well. This he even made explicit in his report to the Committee, where he suggested in so many words “that the Commission not adopt the phrase 16 17

CDDH/III/SR.15 (7 Feb. 1975): para. 2 (Mr. Wolfe, Canada); para. 16 (Sir David Hughes-Morgan, UK). See note 12, supra.

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‘nor of reprisals’ in paragraph 1” (a phrase that would follow after the statement that “Civilian objects shall not be the object of attack”). The Committee did not follow this advice; when the paragraph, including the words “nor of reprisals”, was put to the vote, 58 delegations voted in favour, 3 against, and 9 abstained. This was not to say that the issue had been disposed of once and for all. Indeed, even in the course of the adoption procedure of Articles 46 and 47 in Committee III the Rapporteur pointed out that the Committee had not yet completed its work on the subject of reprisals: draft Articles 48 and 49, each of which contained a clause prohibiting recourse to reprisals against the objects protected under those Articles, still waited to be dealt with. Moreover, Committee I was also interested in the subject and this Committee had not even begun to consider it. He suggested that it might therefore be desirable to set up a joint working group of the two Committees. This suggestion was met favourably by Committee III, but without any attempt at defining the terms of reference of such a joint working group. The importance of the latter point became apparent soon enough when Mr. Reed, delegate of the USA, noted his delegation’s “reservation on the issue of reprisals as contained in Article 46(4); Article 47(1), and Article 47bis [on the protection of cultural objects and places of worship] to the effect that those provisions must be consistent with and subject to the work and determinations on the question of reprisals to be taken up by Committee I under Article 74 – repression of breaches – and by the proposed special study group which would consider that matter.” This suggested that, at least in the view of this delegate, Committee I and the joint working group would both have power to reconsider the whole issue of reprisals with complete disregard of the decisions taken by Committee III. During the remainder of the second session, various abortive attempts were made to set up such a special group, which would include not only members of Committees I and III but of Committee II as well; this because Committee II had in the course of its proceedings come up against a particular aspect of the problem of reprisals, viz., the question of whether the term “reprisals” could be used in Protocol II and thus made applicable in internal armed conflicts as well. Towards the end of the session it had become clear that no more could be achieved than a decision of principle on the establishment of a special group at the third session. This decision was taken by each of the three Committees. In Committee III it was preceded by a debate in which the different attitudes and expectations set out above once more came to light. Thus, while Mr. Blix 18 19 20 21 22

CDDH/III/224. CDDH/III/SR.24 (25 Feb. 1975), para. 16. Ibid., para. 13. Ibid., para. 15. Ibid., para. 39.

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(Sweden) believed that such a group could not have power to reconsider articles of draft Protocol I (other than from a drafting point of view) and that its terms of reference should therefore be confined to draft Protocol II (and, hence, to the terminological question indicated above), Mr. Aldrich stated rather vaguely and ambiguously that the proposal “did not suggest that the Group’s terms of reference should be confined to draft Protocol II.” For the rest, rather than suggesting that they should not be so confined, he merely strove to leave the matter of the terms of reference open for decision at the third session. Speaking on behalf of the United Kingdom delegation, Sir David Hughes-Morgan went somewhat further and actually entered a reservation similar to that made earlier on by the delegate of the USA, when he said that, in the expectation of the establishment of a special group for the question of reprisals, “his delegation and others had not discussed reprisals in any detail, as it would have been premature to do so.” He added, at the address of Mr. Blix, “that the Swedish representative was under a misapprehension in stating that the Group would be limited to mere questions of drafting.” These various statements deserve the following comment. Technically, the position taken by Mr. Blix appears to be the correct one. The plenary Conference had assigned the draft Articles on the protection of the civilian population to Committee III, and this Committee and its Working Group had discussed at length and in depth all the various aspects of these proposed Articles, amending them considerably in many places. Finally, and with full knowledge of what it was doing, Committee III had voted upon the Articles as they had emerged from these extended deliberations, and it had adopted them without exception and including the paragraphs or clauses banning reprisals. According to the Rules of Procedure, a two-thirds majority would be required in the Committee even to reopen the discussion on issues so decided. In these circumstances, it seems hard to accept as a statement in good faith that delegations had refrained from discussing reprisals “as it would have been premature to do so.” What Sir David really meant to say was, of course, that like his French and other Western colleagues he considered Committee III an inappropriate forum to discuss reprisals any further; that he had some hopes of greater success in Committee I, and that he therefore wished to create the belief that no final decisions had yet been taken in Committee III with respect to the issue of reprisals against the civilian population. It remained to be seen, however, whether this posture and the U.S. and U.K. reservations could have the desired effect. When the third session of the CDDH had been opened in April 1976, it soon emerged that at least for the time being, the idea of setting up a joint 23 24 25 26

CDDH/III/SR.38 (10 April 1975), paras. 66, 69. Ibid., para. 67. Ibid., para. 71. Rule 50 jo Rule 32; CDDH/2/Rev. 1 (12 March 1974).

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working group had been abandoned: in the view of the General Committee of the Conference, more would be lost than gained by setting up yet another body. Instead, the General Committee decided to assign to Committee I the problem of reprisals as a whole; as the President explained, it had seemed natural to do so, as Committee I was responsible for consideration of the general provisions of the draft Protocols and had in fact to consider “an amendment of a general nature on reprisals in draft Protocol I” (evidently a reference to the French proposal for an Article 74bis). He added that “[i]n considering the question, Committee I would of course have to take into account the work already done on the subject by Committees II and III, and especially the provisions relating to reprisals already adopted by them.” This formula was not without a certain ambiguity: did it mean to say that Committee I would be obliged to abide by the decisions taken by Committees II and III (“take into account … the provisions already adopted”) or would it have power to overrule these? The latter conclusion might perhaps follow from the reference to the “amendment of a general nature”, which in itself constituted an attempt to override the specific prohibitions of reprisals adopted by Committee III. In Committee I, towards the end of the ensuing introductory debate on draft Article 74bis, the Netherlands delegate, Mr. Bloembergen, made an attempt to obtain a clear answer to these questions. As he saw it, Committee III had taken its earlier decisions on the understanding that the entire matter of reprisals would be taken up again; and, if this was in fact the task assigned now to Committee I, it should be carried out before the French draft Article was considered any further. He therefore put the specific question whether re-examination of the prohibitions already adopted was in fact within the powers of Committee I. The answer given by the Chairman of the Committee, Mr. Ofstad (Norway), as rendered in the provisional summary record was not overly clear; as recorded, he stated that “[i]t was … clear that Committee I was entitled to consider the question of reprisals.” But it seems that his ruling purported to convey that Committee I was indeed empowered to reconsider also the specific prohibitions of reprisals adopted by Committees II and III. Be this as it may, the fact of the matter is that Committee I did consider the problem of reprisals in general and then, without taking decisions on any of its substantive aspects, referred it to its Working Group, which during the third session did not find time to consider the matter. With that, the problem was deferred to the fourth (1977) session of the CDDH, and it will remain to be seen 27 28 29 30

CDDH/SR.31 (21 April 1976), pp. 9-10. It should be cautioned that references to SR documents of the third session are to provisional summary records. CDDH/I/SR.48 (30 April 1976), p. 6. Ibid., p. 9. CDDH/I/SR.46-48 (28, 30 April 1976).

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whether either Committee I or Committee II (or, for that matter, the plenary Conference) feel both authorized and eager to set aside, in particular, the bans on reprisals in the context of the protection of the civilian population adopted by Committee III. While thus, from a procedural point of view the efforts of Committee I did not succeed in resolving the question of reprisals in draft Protocol I and merely resulted in the issue being carried over to the fourth session of the CDDH, yet the introductory debate on draft Article 74bis already provided much interesting information about the views held by many delegates with respect to the substantive side of the matter. It seems therefore worthwhile to examine at this juncture the arguments advanced in the course of that debate, adding some comments of my own. The debate was held on the basis of an amended version of the French proposal, submitted at the outset of the third session and which differed significantly from the original version in more than one respect. First and foremost, the text contained no longer any reference to the term “reprisals”; instead, the opening paragraph reads as follows: In the event that a party to a conflict commits serious, manifest and deliberate breaches of its obligations under this Protocol, and a party victimized by these breaches considers it imperative to take action to compel the party violating its obligations to cease doing so, the victimized party shall be entitled, subject to the provisions of this Article, to resort to certain measures which are designed to repress the breaches and induce compliance with the Protocol, but which would otherwise be prohibited by the Protocol.

It is an obvious comment that this text, although studiously avoiding the term “reprisals”, gives an accurate description of exactly that concept. Like those delegates, both proponents and opponents of the French proposal, who in their interventions simply referred to “reprisals”, I feel therefore entirely justified to use that term instead of the ingenious (or even somewhat disingenuous) phrase “certain measures” introduced by the French. The conditions which must be met prior to recourse to reprisals are contained in the quoted opening paragraph: – serious, manifest and deliberate breaches of a party’s obligations under the Protocol, 31 32

CDDH/I/221/Rev. 1 (22 April 1976). Few delegates managed to keep referring throughout their interventions to “certain measures”, “countermeasures” or similar terms; most notable among them were Messrs Girard (France) and Draper (UK). Most other delegates either made the point explicit that the French text really was concerned with reprisals, or simply used that term.

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Chapter 33 imperative necessity for the victimized party to take action to compel the first party to cease doing so, reprisal designed to repress the breach and induce compliance with the Protocol.

Paragraph 2 contains a further set of conditions; it reads as follows: (a)

(b) (c)

The measures may be taken only when other efforts to induce the adverse party to comply with the law have failed or are not feasible, and the victimized party clearly has no means of ending the breach; The decision to have recourse to such measures must be taken at the highest level of the government of the victimized party; and The party committing the breach must be given specific, formal, and prior warning that such measures will be taken if the breach is continued or renewed.

This is not even the end of the story; a third paragraph follows, which spells out yet further requirements for justifiable recourse to reprisals: If it proves imperative to take these measures, their extent and their means of application shall in no case exceed the extent of the breach which they are designed to end. The measures may not involve any actions prohibited by the Geneva Conventions of 1949. The measures must cease, in all events, when they have achieved their objective, namely, cessation of the breach which prompted the measures.

All in all, this surely constitutes an impressive list of conditions and, it may be added, in many respects a most satisfactory one: a belligerent reprisal which is not otherwise prohibited and which meets all the above conditions would, indeed, be a model of its kind. The crux of the proposed text, however, and its main problem lies of course in the second sentence of paragraph 3 which excludes only “actions prohibited by the Geneva Conventions of 1949” and, hence, not actions prohibited by the Protocol. This is to say that draft Article 74bis, if accepted without amendment, would override the bans on reprisals adopted by Committees II and III. In this respect the French proposal went somewhat further than was intended, for as was implicit in the explanations offered in Committee I by the French representative, Mr. Girard (and even explicit in words he spoke in private) the only purpose he had in mind was to override the far-reaching prohibitions of reprisals in the context of the protection of the civilian population which Committee III had included in Articles 46-49.

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CDDH/I/SR.46 (28 April 1976), p. 5.

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It may perhaps strike as somewhat odd that out of all the conditions quoted above, the French proposal groups some of them together in a separate paragraph 3, instead of simply listing them together with the other ones in paragraph 2. The explanation lies in the opening phrase of paragraph 3: “if it proves imperative to take these measures …” In the French thinking, the whole procedure would be divided into two phases. At the end of the first phase, the party victim of the violations would wind up threatening reprisals against the perpetrator of the breach (para. 2(c)). Only after this threat had remained without effect, the second phase, i.e., the actual carrying out of the reprisal, would come into operation. Indeed, as Mr. Girard explained, the main purpose of the proposal was “to give the victim of a breach a means of deterrence” (in the form of the threat of reprisals) and it was therefore his delegation’s hope “that paragraph 3 of its proposal might never have to be applied.” This brings us to the arguments adduced by Mr. Girard and others in favour of the French proposal. Basically, their position was simple; in Mr. Girard’s words: The fact must never be ignored that the rules of the Protocols were intended to be applied in times of armed conflict by armies engaged in operations; and that they governed the conduct of those operations. Hence, it was essential, if those rules were to have any meaning, that they should be effective, fair and credible.

It was the elements of effectiveness and, hence, credibility which he believed to be insufficiently guaranteed without some effective means of deterrence being placed at the disposal of States confronted with serious breaches of humanitarian law. True, importance was attached by many States to a system of penal sanctions, and of course the victim State could also request the ICRC to make an appeal to the party committing the breaches to discontinue them; but neither of these methods would in his eyes provide the effective means of law enforcement which would be required to maintain the credibility of the law. Similar ideas were expressed by Mr. Draper (United Kingdom) when he stated that “in the past the enforcement of the international humanitarian law of armed conflict had been very weak, and the French proposal … was an attempt to make that law a living reality rather than a series of hopeful aspirations that had no effect in binding the parties at war.” As he saw it, the mechanism for the repression of breaches which the proposal was designed to provide “was a care-

34 35

Ibid., p. 9; and see p. 8, where Mr. Girard remarked that “such a threat should be sufficient to serve the purpose.” Ibid., p. 6.

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fully controlled and last-resort system of legitimate countermeasures permissible against an adversary committing serious breaches of the Protocol.” The element of restraint and control in the proposal had also been emphasized by Mr. Girard: Violations of the law by one of the parties to the conflict would inevitably lead the other party to act in the same way, and violence would then escalate disastrously. That was precisely what his delegation wished to avoid: not only the breach of the law but the escalation of breaches.

Mr. Miller (Canada) took up the same point when he said that “it often happened that a party victimized by a breach reacted by resorting to extra-legal measures called ‘reprisals’. The draft of Article 74bis submitted by France made it possible to bring such actions out into the open and to impose limits and conditions which would be both accepted and acceptable.” These arguments by the main proponents may be summed up in few words: ineffectuality of means of enforcement other than reprisals, and the need that recourse to the latter be regulated and brought under control. Evidently, as mentioned before, these fervent advocates of the French proposal intended it to override the prohibitions incorporated in Articles 46-49; a point made explicit by Mr. Draper when he said that he could not agree “that the question of countermeasures had already been disposed of in a negative manner in Committee III” and when he repeated the position taken earlier by his delegation “that the acceptance by many delegations at that time … was ultimately subject to the action to be taken in Committee I.” Yet, neither he nor his colleagues dared to refer openly to a perceived need, in particular, for reprisals against the civilian population and civilian objects. Other participants in the debate actually did refer to that particular aspect of the proposal. Few of them counted themselves among the supporters of the proposed Article 74bis. Thus, Mr. Bindschedler (Switzerland), said that although his delegation “supported the amendment in principle and would study the new text which had been put forward with the closest attention”, the delegation wondered whether the prohibition in paragraph 3 to take reprisals against persons protected by the Geneva Conventions “should not be extended to other categories of persons or even to objects.” Similarly, Mr. Sperduti (Italy) after expressing his support in principle for the French proposal stated bluntly that his delegation could not accept that it would neutralize Article 46(4): it “attached great importance to 36 37 38 39 40

CDDH/I/SR.47 (30 April 1976), p. 9. CDDH/I/SR.46 (28 April 1976), p. 8. Ibid., p. 13. CDDH/I/SR.47 (30 April 1976), pp. 9-10. CDDH/I/SR.46 (28 April 1976), pp. 14-15.

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the absolute character of the rules of the Protocol designed to protect the civilian population.” In that connection he referred to Article 60(5) of the Vienna Convention on the Law of Treaties, laying down that paragraphs 1 tot 3 of that Article dealing with the termination or suspension of (the operation of ) a treaty on account of material breach “do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.” To most of the delegates taking part in this introductory debate, however, the French proposal for an Article 74bis was totally unacceptable. Basically, their arguments were of two kinds: unacceptability in principle of any regulation and hence legitimacy of recourse to reprisals, and rejection of the attempted inroad on the protection of the civilian population against reprisals. Arguments of the first type ranged from the rhetorical (but valid) question “whether reprisals were not a manifestation of the law of the strongest” and whether it was morally open to the Conference “in the last quarter of the twentieth century” to “approve measures directed against the innocent and thus overlook the purposes for which it had been summoned”, to the rather less well-founded assertion that reprisals (i.e., belligerent reprisals) run counter to the UN Charter, the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations (GA Res. 2625 (XXV)) and, even, the Final Act of the Conference on Security and Cooperation in Europe. As the main purpose of the French proposal unmistakably was to restore the capacity for belligerents to take reprisals against the enemy civilian population and civilian objects, it seems necessary for us to revert once again to that crucial problem. In doing so, two questions shall be examined in particular: does a need for reprisals against the civilian population really exist? And: does the idea of introducing the threat of reprisals, virtually as a separate concept, appear to be a useful one? Discussion of these questions can usefully take as its starting point, on a more general plane, the proposition that violation of a given rule of humanitarian law applicable in armed conflicts by one party to the conflict will inevitably entail its violation by the other party as well. This idea of the sheer unavoidability of reprisals in kind, as a mere reflection of the general operation of the principle of reciprocity in international law, inexorably leads to the conclusion that prohi-

41 42 43

CDDH/I/SR.47 (30 April 1976), p. 15. CDDH/I/SR.46 (28 April 1976), p. 11: Mr. Rechetnjak (Ukrainian SSR). Ibid., p. 12: Mr. Kakolecki (Poland); CDDH/I/SR.47 (30 April 1976), p. 12: Mr. Bobylev (USSR); ibid., pp. 19-20: Mr. Sheldov (Byelorussian SSR); CDDH/I/ SR.48 (30 April 1976), p. 2: Mr. Alexie (Romania).

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bitions of reprisals had better be left unwritten, as they are totally unrealistic and doomed to be set aside whenever the need arises. Criticism of this kind has at times been levelled against the very system of categorical bans on reprisals as embodied in the Geneva Conventions of 1949 as well. To my mind, it does less than justice to the makers of the Conventions who, while fully aware of the operation of the “principle of negative reciprocity”, also realized the futility in most cases of a resort to reprisals as a means of checking violations on the side of the adversary, and who moreover took pains to introduce into the Conventions substitute means of enforcement, viz., a combination of a system of outside supervision and individual penal responsibility. While no person in his right senses would suggest that these latter means of enforcing the Conventions are foolproof means to achieve the desired end, it seems equally inaccurate to suggest that they would yield in effectiveness to reprisals. Indeed, it seems a tenable proposition that even the modicum of supervision which the ICRC has been able to carry out in a number of recent armed conflicts has been more effective in bringing to an end even persistent patterns of unlawful conduct than reprisals have ever been. It is worth emphasizing that in the course of history actual recourse to reprisals, say, against prisoners of war has proved to be of singularly little avail as a means of enforcing the law. It should also be noted that since the adoption in 1929 of the prohibition of reprisals against prisoners of war instances of such reprisals, resorted to by a party bound by the Conventions, have been extremely rare. This goes to disprove the thesis that a violation of the law by one party would inevitably entail reprisals by the other party, as though they were some kind of natural phenomenon. Would different considerations apply where reprisals against the civilian population are concerned? Of course, the situations differ in one important respect: while in the case of reprisals against prisoners of war, the sick or wounded, or the population in occupied territory the victims are in the hands of the party taking the reprisal, the reprisals which Articles 46-49 of draft Protocol I seek to prohibit are directed against the civilian population, or civilian objects, in non-occupied enemy territory and, hence, against a class of persons who may be felt to be somewhat less impotent than the first-mentioned categories of persons. Yet, history furnishes little ground, if any, for the assumption that on an average, reprisals against the civilian population would be more effective than those against prisoners of war and suchlike classes of persons. The argument usually advanced, however, is not the expected effect but necessity. It is argued that in case of “serious, manifest and deliberate breaches” of the provisions relating to the protection of the civilian population the “vic44 45 46

Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals, Vol. II: The Law of Armed Conflict (1968), pp. 10, 99. For a fuller discussion of this question, see op. cit. note 1, passim. Ibid.

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timized party” simply will be forced to retaliate in kind; that it cannot afford to act otherwise; that the government can never explain to the population that, yes, the attacks it is suffering are utterly unlawful and intolerable but that, alas, the Government cannot meet the people’s just demands for retaliation in kind as it has signed away its power to do so. With respect to this argument of “psychological necessity”, the present author has every understanding for the predicament of a government that, whether or not prodded by vociferous demands on the part of public opinion, feels the irresistible urge to repay the adversary with its own coin. However, I see no earthly reason why such a course of action should be formally endorsed and, indeed, legitimized by attaching to it the official stamp of a sanction provided in the appropriate Part of draft Protocol I. Recourse to reprisals against the civilian population does not deserve any such legitimacy; on the contrary, such acts are as reprehensible as reprisals, say, against prisoners of war: – they hit innocent persons; even if the civilian population appears to endorse, or even has actually clamoured for, a certain government policy, it does not thereby become a responsible actor; – they are only too likely to remain without effect; indeed, not a single instance of effective reprisals against the civilian population has come to my knowledge; – they can hardly fail to lead to abuse and escalation; in this respect, it is difficult to visualize how the principle of proportionality could operate satisfactorily here. For these reasons, I would vastly prefer a legal situation to the effect that reprisals against the civilian population are denounced in no uncertain terms as illegal acts – equally illegal, in fact, as the breaches which would have prompted them. This, of course, is precisely the legal situation which the text adopted for Articles 46-49 is designed to bring about. To the above argument of a psychological order Mr. Girard (France) added another one but which likewise falls under the heading of necessity. As he had it, “[d]uring a period of armed conflict it was not after the event that the machinery of sanctions should come into action but at the time when the rule was broken, and when that breach could cause a serious and perhaps decisive upset in the balance of forces” (italics added). This, of course, is the argument of military necessity pure and simple; does it hold good? A differentiation seems in order here. Part of the law of armed conflict is concerned with the use of certain weapons, or the employment of certain methods of 47

48

Similar arguments were advanced by a variety of speakers in the course of the debate in Committee I as objections against the French proposal; it may suffice to mention the interesting intervention of Mr. Graefrath (GDR); CDDH/I/SR.47 (30 April 1976), pp. 5-8. CDDH/I/SR.46 (28 April 1976), p. 6.

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warfare, which are of great military import and may even have a decisive effect on the outcome of the war. With respect to those rules (of which the prohibition to employ gas may be given as an example) the principle of reciprocity applies more or less as a matter of course, and even an agreement to apply the more refined law of reprisals (as set out, for instance, in draft Article 74bis) would already constitute an important concession. Needless to say, an attempt to ban reprisals in that area for the time being could be little more than an empty gesture. It is submitted, however, that the rules relating to the protection of the civilian population do not belong to this class of rules. True, military considerations have played an important part, and a careful balance has been struck, in defining the very precise rules, e.g., on the protection of objects indispensable to the survival of the civilian population (Art. 48) or the precautions to be taken in planning or carrying out an attack (Art. 50). But the basic principles involved (prohibition to make the civilian population or civilian objects the object of attack; prohibition of indiscriminate attacks) are straightforward and, in effect, not very sophisticated in character and are, indeed, little more than a reflection of the acknowledged fact that such attacks are of little avail at best. The latter point cannot be too strongly insisted upon. Perhaps the most important result of the CDDH in the sphere of protection of the civilian population has been a universal recognition of the futility of directing one’s military efforts against the enemy civilian population; a recognition, it should be added, which came not only from diplomats and other laymen but from the military first of all. In this light, the thesis seems to me untenable that an attack on the civilian population in violation of the above principles could of itself be of a nature (in Mr. Girard’s words) to “cause a serious and perhaps decisive upset in the balance of forces.” Put another way, the argument which he adduced of military necessity cannot carry the conclusion that reprisals against the civilian population should be permitted. At this juncture, it should be recalled that the main purpose of the French proposal appears to lie elsewhere: it is to provide a deterrent. As Mr. Girard explained, he hoped that the application of paragraph 3 (i.e., the actual execution of a measure of reprisal) would never be necessary. This raises the question, mentioned above, of whether there are good grounds for introducing the threat of reprisals more or less as a separate sanction. It is believed by some (and Mr. Girard appears to be one of them) that the real function and efficacy of reprisals lay in their threat rather than in their execution. The argument is that as long as a party to the conflict has reason to fear reprisals (preferably in kind) for any serious violation of the law of armed conflicts, it will have at least that much of an incentive to refrain from, or discon49

This was recognized, e.g., by Mr. Sperduti (Italy) when he said that “The Italian delegation did not believe the time was yet ripe to introduce any general prohibition of reprisals in armed conflict”; CDDH/I/SR.47 (30 April 1976), p. 15.

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tinue, such violation. Conversely, to remove this deterrent would be tantamount to inviting the parties to disregard the law with impunity. Mr. Girard in his introductory statement mentioned in this connection “a recent example, striking in its dignity and effectiveness”: an unmistakable reference to the Israeli bombardment of residential areas in Damascus in the recent outbreak of hostilities in the Middle East, a bombardment which is said to have been discontinued after an Egyptian threat of reprisals in kind against Israeli cities. What does this incident prove? To my mind, nothing but the incontestable fact that fear of retaliation, or of escalation, at times takes an important place in the calculations of decision makers operating on the international plane, whether in the context of armed conflict or otherwise. Obviously, it may be worth playing on that fear and testing whether a threat of retaliation may be sufficient to bring the adversary to better thoughts. Equally obviously, this will have the desired effect only with an adversary who is not unshakably determined to persist, no matter at what cost, in the course entered upon; but even so, there is no denying the potential value of this harmless method of deterrence. Deterrence by threat of retaliation is not only basically harmless, it also seems to me a permissible method; or should it be said that the series of prohibitions of reprisals embodied in Articles 46-49 of draft Protocol I cover the threat of reprisals as well? I see no reason for such an assertion; on the contrary, I am convinced that what the drafters of these prohibitions had in mind was actual recourse to reprisals, as the type of action which, like actual recourse to reprisals against prisoners of war, the sick and wounded, or the population in occupied territory, causes unnecessary suffering in that it hits the wrong persons, most often fails to achieve the desired effect and, indeed, merely leads to escalation. Yet Mr. Girard apparently considered it necessary expressly to safeguard as a legal device the threat of reprisals (taking it in his stride that actual recourse to reprisals, although hoped never to occur, would become justifiable as well). For this I can offer only one explanation, viz., that what he had in mind was the deterrent function, not of threatened reprisals in a conventional setting, but of the nuclear weapon. Indeed, it seems to be a constant fear of the nuclear Powers that the rules adopted in the CDDH, and notably those relating to the protection of the civilian population, will have a direct impact on their powers of deterrence by the threat of nuclear retaliation. In private conversations, Mr. Girard has con50 51

CDDH/I/SR.46 (28 April 1976), p. 8. One delegate who entered specifically into this aspect of the matter, Mr. Eide (Norway), characterized the idea “that the threat of reprisals against persons or property otherwise protected under the Protocol would cause the Government or military command to end the violations” as a “doubtful assumption”: “In the past, desperate leaders had not been induced to act more responsibly by threats to their nationals, and that might well apply where a minority regime faced a war of national liberation.” True, but this leaves open the possibility that a threat of reprisals would have a somewhat more positive effect on a not-so-desperate leader.

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ceded in so many words that this was the fear which had prompted the French to submit their proposal for an Article 74bis. This is interesting because the official position is that the work of the CDDH does not affect nuclear strategy. It is said that certain nuclear Powers intend to give this position formal expression in declarations to that effect at the time of the closure of the Conference. Is it therefore ex abundante cautela that France wishes to safeguard a power which is not threatened in the first place? Or is it an accurate assessment on their part that the rules elaborated in the CDDH will inevitably, and no matter what nuclear Powers may wish to declare, come to govern nuclear warfare as well? These questions may be left unanswered here. May it suffice to add that even a positive answer to the last question would not lead me to a different conclusion as to the problem at issue in this paper: while the threat of reprisals against the enemy civilian population may occasionally prove to be an effective, and harmless, means of deterring the adversary from a mode of warfare in violation of the rules for the protection of the civilian population, Committee III made the right choice in adopting rules prohibiting actual recourse to reprisals both against the civilian population and against civilian objects. The present author strongly hopes that the fourth session of the CDDH will see these prohibitions duly confirmed by the plenary Conference. This all the more since a most promising development has occurred in the course of the third session, when many delegations participating in the work of Committee I commented favourably upon a proposal, submitted by Denmark, New Zealand and Sweden, for the establishment of a permanent International Enquiry Commission, the function of which would be “to enquire into any alleged violation of the Conventions and the present Protocol and other rules relating to the conduct of an international armed conflict (i) at the request of one or more Parties to the conflict; (ii) on its own initiative.” While much work remains to be done on this proposal, and while in particular the suggestion that such a commission would have a power of initiative was met with less than enthusiasm in many quarters, it is a hopeful sign that the proposal was widely welcomed as a most constructive and basically acceptable contribution to the solution of the baffling, yet crucial, problem of enforcing the law of armed conflict. Indeed, except for those rules whose violation may directly and decisively affect the outcome of a military operation, or even of the war, the idea put forward by the aforementioned countries may well be found to constitute an adequate substitute for belligerent reprisals. 52

CDDH/I/241 (19 March 1975): proposal for new Article 79bis of draft Protocol I; for the introductory discussion, see CDDH/I/SR.56-58 (12-14 May 1976). Pakistan had also submitted a proposal for an Article 79bis (CDDH/I/267, 25 March 1975) which indicated the body to be established as a “permanent Commission for the Enforcement of Humanitarian Law”; also in other respects it was somewhat more ambitious than the first-mentioned proposal.

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This leaves one final question: should the French proposal for a regulation of the threat of – and recourse to – reprisals be retained for those cases, mentioned a moment ago, where infringement of a rule may have a direct and decisive effect on the course of the war? The rules that come to mind in this respect are those concerning the “methods and means of combat” laid down in Part III, Section I of draft Protocol I, and notably the basic rules prohibiting the employment of “weapons, projectiles, and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering” and of “methods or means of warfare which are intended or may be expected to cause widespread, long-term, and severe damage to the natural environment” (Art. 33(2)and (3)) as well as the detailed rules on the prohibition of perfidy, improper use of recognized emblems, and use of neutral or enemy “flags or military emblems, insignia, or uniforms” (Arts. 35-37). One could also think in this connection of rules banning the use in war of specified weapons, such as gas and other chemical means of warfare, the dum-dum bullet, and such weapons as might eventually be added to this list as a result of the ongoing discussions on the subject of conventional weapons in the light of the principles and rules of international humanitarian law. Since under present international law it may be argued (as it was done above) that reciprocity applies more or less as a matter of course here, adoption of the French proposal might well constitute an important improvement in the law relating to methods and means of combat; the automatism and complete lack of restrictions in the operation of reciprocity would be replaced by such mitigating requirements as prior warning, proportionality and discontinuation when the original infraction ends. Yet, it may be worth mentioning here an argument advanced by Professor Myrdal (Sweden), as reported to the present author by Mr. Blix in a discussion on the subject of reprisals. While not denying the utility in principle of rules regulating recourse to reprisals, Myrdal had pointed out that to introduce at the present juncture rules on reprisals might have the effect of continuing the existence of what otherwise might be considered a dying institution; it would then be preferable to let the practice of reprisal die quietly, leaving such recourse to reprisals as might still occur to the operation of the applicable rules of customary law. There seems to be much force in this argument. To write into the draft Protocol a set of detailed rules designed to govern recourse to reprisals, even though this were done in the Section on “Methods and Means of Combat” rather than, as the French proposed, in the Part on “Execution of the Conventions and of the Present Protocol”, could not fail to create the impression that here, at long last, was the official recognition of belligerent reprisals as a legitimate, or at least justifiable, means of enforcing rules of armed conflict. While this would have been a highly desirable development a century ago, it may well be that in our time the effects of such a step would be completely counterproductive. The present author finds it difficult to assess the validity of the above objection and to balance it against the value of substituting reprisals for reciprocity

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in an area of the law of armed conflict where otherwise the standard of civilization may all too easily risk to be put in grave jeopardy. Especially if further bans or restrictions on use of specific conventional weapons were to emerge from the current endeavours in that field, I would be strongly inclined to advocate for that event an express exclusion of plain reciprocity as the governing principle. This might admittedly imply the introduction of reprisals as an indispensable sanction. I for one would accept that consequence, all the more so as this would then occur in a separate instrument and, hence, would not cast a stain on the “reaffirmation and development of international humanitarian law” as contained in draft Protocol I.

Chapter 34 Belligerent Reprisals Revisited*

1

Introduction

The international law of armed conflict aims to regulate the conduct of hostilities by belligerent parties and their armed forces and to protect certain especially vulnerable categories of persons, such as prisoners of war and the inhabitants of occupied territories. How effective can it be in this pretension, and what mechanisms are available to promote compliance? In common with most other branches of public international law, the law of armed conflict lacks community institutions of the type normally found in systems of municipal law to ensure respect of the law. Yet it has never been totally devoid of means for the promotion of compliance either: e.g., State responsibility and individual liability for war crimes; supervision by outside powers; and obviously, dissemination of knowledge of the law. This paper examines one classic device, available to the parties to the conflict and recognized since time immemorial as an institution of customary international law. It is the belligerent reprisal, i.e., an act in breach of a specific rule of the law of armed conflict, directed by one belligerent party against another party with a view to inducing the latter to stop violating this particular or some other rule of this body of law (reprisal in kind or not in kind, respectively). While belligerent reprisals were never entirely free of controversy, in the course of time the very idea of recourse to such draconian measures became exposed to ever louder criticism. The main grounds for such criticism were that they were rarely effective, were apt to affect persons who could not be held accountable for the other party’s violation of the law, and tended to set in motion a spiral of reciprocal reactions resulting in an escalation of violence in complete disregard of the law. The criticism was not shared in all quarters. Yet it was sufficiently strong to lead to the introduction into an ever growing number of treaties on the law of *

1

Published earlier in 21 NYIL (1990) pp. 43-80. In an introductory footnote, the author thanked Professor George H. Aldrich for reading and commenting on an earlier version of the paper. This is a mere working definition. For a fuller discussion of the concept and definition of reprisal, see F. Kalshoven, Belligerent Reprisals (1971) Chapter I.

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armed conflict, of provisions outlawing reprisals against specified categories of persons or objects protected by those treaties. The parties to an armed conflict governed by these treaties thus saw themselves deprived of the means of enforcement that the reprisal in breach of specific rules embodied in these treaties (and more often than not in response to a violation of the same rules) purported to be. At the same time, other mechanisms were introduced, such as outside supervision, and it was hoped that these could take over the role of the banned reprisal. Not all belligerent reprisals were so prohibited. Apart from this, the debate continued unabated: were belligerent reprisals really as bad as they were depicted, and were they not perhaps indispensable after all? In the 1970s, when along with other major parts of the law of armed conflict, the rules for the protection of the civilian population against the effects of hostilities were brought up for revision, this debate gained fresh impetus. In 1971, with the process of “reaffirmation and development” of the law of armed conflict in its initial stages, this author happened to publish his book on “Belligerent reprisals”, which may have exerted some influence on subsequent events. In view of its continuing topicality he now ventures to return to the topic, in an attempt to clarify the present state of affairs and the prospects of reprisals as a means of enforcement in the international law of armed conflict. Chapter 2 provides a short history of the existing conventional prohibitions on recourse to reprisals in international armed conflicts. Chapter 3 enters into the debate around those prohibitions specifically designed to protect the civilian population in non-occupied territory. Chapter 4 explores some areas where reprisals at first sight have remained permissible. Chapter 5 discusses some specific problems attending the notion of reprisals in internal armed conflicts. Finally, and by way of conclusion, the author sets forth his views on possible trends in development. One thing he hopes to show is that the question of belligerent reprisals has always been, and still is, less simple than it may seem. 2

Short History of Prohibitions in Force

The first treaty prohibition on a specific case of recourse to reprisals dates back to 1929. In that year, a Diplomatic Conference convened in Geneva to draft two

2 3 4 5

See the articles by the present author in this Yearbook: 2 (1971) pp. 68-90, 3 (1972) pp. 18-61, 5 (1974) pp. 3-34, 8 (1977) pp. 107-135, 9 (1978) pp. 107-171. Op. cit. note 1. An earlier version of this paper appeared in German in 2 Humanitäres Völkerrecht, Informationsschriften 4 (Oct. 1989) pp. 4-17. Final Act, reprinted in D. Schindler & J. Toman, The Laws of Armed Conflicts, 3rd ed. (1988) (hereinafter: Schindler & Toman) p. 321.

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conventions, one being a revision of the 1906 Wounded and Sick Convention and the other a new Prisoners of War Convention. The Conference introduced into Article 2 of the latter Convention a paragraph stating that “Measures of reprisal against them [i.e., prisoners of war] are prohibited.” The introduction of this first prohibition of reprisals had not gone unchallenged. In 1921, in the aftermath of World War I, the ICRC had put forward the suggestion to place a ban on reprisals against prisoners of war. That same year, opposition to this idea came to light when the International Law Association examined a draft code for the treatment of prisoners of war. The crux of the argument contra was that, no matter how abhorrent the practice of reprisals against prisoners of war, the prohibition of such measures could never be relied on as effective, as no army “could reasonably be expected to renounce in war so effective and powerful a weapon for the redress or cessation of supposed intolerable wrong upon its own nationals at the hand of the enemy as immediate or threatened reprisal on enemy units in its own hands.” When the proposal for a categorical ban on reprisals against prisoners of war was thereupon formally introduced in the Diplomatic Conference of 1929, the British representative raised the same objection. Instead of a total ban, he argued, the Conference should accept a provision morally condemning recourse to reprisals against prisoners of war. This moral condemnation might then be followed by a set of rules designed to limit such recourse to cases where the adversary was himself guilty of unlawful acts against prisoners of war (i.e., reprisals “in kind”) and even then requiring that the execution of a planned measure of reprisal be preceded by a series of formal steps aimed at removing the causes of, and thus the need for, the measure. However, the British proposal failed to

6

7 8

9 10

Text of the 1906 Convention in Schindler & Toman, p. 301. The full title of the revised Convention is: Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, signed at Geneva, 27 July 1929; Schindler & Toman, p. 325. Convention Relative to the Treatment of Prisoners of War, signed at Geneva, 27 July 1929; Schindler & Toman, p. 339. The Diplomatic Conference of 1929 saw no need to introduce a similar provision in its other product, the revised Wounded and Sick Convention (Schindler & Toman, p. 325). As explained by P. des Gouttes, La Convention de Genève du 27 juillet 1929, Commentaire (1930) pp. 22-24, the two Conventions of 1929 should be read together and the Conference consciously limited the sphere of application of the Wounded and Sick Convention to the armies on the battlefield, relegating to the Prisoners of War Convention all matters connected with the treatment of wounded or sick combatants evacuated as prisoners of war to the rear. The suggestion was made in a report to the Xth International Conference of the Red Cross; see Kalshoven, op. cit. note 1, pp. 71-72. Ibid., at p. 74.

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muster any support, and the proposed prohibition was accepted unanimously, i.e., including the British vote! Once this first hurdle taken, the next steps were surprisingly easy. After World War II, the Diplomatic Conference which met in Geneva in 1949 did not hesitate long before including categorical bans on reprisals against protected persons and goods in all four Geneva Conventions of that year for the protection of victims of war. And in 1954, the Hague Intergovernmental Conference on the Protection of Cultural Property in the Event of Armed Conflict, convened by UNESCO, needed equally little time to agree on a ban on reprisals against cultural property protected under the Convention it adopted. While important categories of persons and objects thus were protected from reprisals, one particularly vexing problem remained, i.e., whether the civilian population and civilian objects in enemy, non-occupied territory could and should be afforded similar protection. It remained for the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974-1977, to wrestle with this problem. The ICRC submitted to the Conference a draft Protocol I on the protection of victims of international armed conflicts which in the part on general protection of the civilian population against the effects of hostilities contained a prohibition on attacks by way of reprisal against the civilian population and individual civilians but not against civilian objects. The ICRC had thought it wise to so limit its proposal because “[to] forbid reprisals against civilian objects in general 11

12 13

14 15

16 17

Ibid., pp. 79-80. It should be noted that the Conference also introduced in Arts. 86-88 of the 1929 POW Convention, rules defining the functions and powers of Protecting Powers in their role as outside supervisors and mediators, and expressing support for the ICRC in its humanitarian activities. Final Act of the Diplomatic Conference of Geneva of 1949, Schindler & Toman, p. 367. Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Art. 46; Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Art. 47; Geneva Convention III relative to the Treatment of Prisoners of War, Art. 13(3); and Geneva Convention IV relative to the Protection of Civilian Persons in Time of War, Art. 33; Schindler & Toman, p. 367 et seq. Final Act, Schindler & Toman, p. 741. Art. 4(4) of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, signed at The Hague, 14 May 1954; Schindler & Toman, pp. 745-768, at p. 748. Final Act, Schindler & Toman, op. cit. note 5, p. 605. ICRC, Draft Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, Art. 46(4); 1 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974-1977) (hereinafter O.R.) Part Three, at p. 16.

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would exclude the possibility of carrying out reprisals under the laws of war”, and it feared that “there might be strong opposition to the inclusion of such a strict prohibition.” The important thing was to prevent the parties from directing their reprisals against the enemy civilian population. Civilian objects, on the other hand, could be regarded as comparatively expendable. At the Conference, a strong majority expressed itself against this distinction. One argument contra was that in practice it would prove extremely difficult if not simply impracticable to maintain the distinction and attack only objects while sparing the people. On these and other grounds, and notwithstanding staunch opposition from several quarters, the Conference decided to supplement the prohibition proposed by the ICRC with a prohibition on reprisals against civilian objects. Once this step taken, the fences were down and similar prohibitions were adopted in rapid succession on reprisals against a series of specially protected objects. For some of those who had been prepared to go along with the insertion of a general ban on reprisals against civilian objects (such as Australia) this was going too far, and they registered their opposition to the ensuing avalanche of prohibitions. For other delegations, notably those of France, Great Britain and the United States, the very principle behind the whole set of rules was and remained unac18

19

20

21

14 O.R. p. 109: CDDH/III/SR.14, para. 5. Mrs. Bindschedler-Robert, introducing the draft article on behalf of the ICRC, added that “There was of course nothing to prevent the Committee from introducing the concept of prohibition of reprisals into article 47, should it so desire.” On the drafting history of the prohibitions at issue, see S.E. Nahlik, “Belligerent Reprisals as Seen in the Light of the Diplomatic Conference on Humanitarian Law, Geneva, 1974-1977”, 42 Law and Contemporary Problems (1978) no. 2, pp. 36-66; also in French, “Le problème des représailles à la lumière des travaux de la conférence diplomatique sur le droit humanitaire”, in 82 RGDIP (1978) no. 1, pp. 130-169; F. Kalshoven, “Reprisals in the CDDH”, in R.J. Akkerman et al. (eds.), Declarations on Principles: A Quest for Universal Peace – Liber Amicorum Discipulorumque Prof. Dr. Bert V.A. Röling (1977) pp. 195-216, at p. 197; id., “The Belligerent Reprisals in the Light of the 1977 Geneva Protocols”, in European Seminar on Humanitarian Law ( Jagellonian University, Krakow, 1979) (1980) pp. 31-46; R. Bierzanek, “Reprisals as a Means of Enforcing the Laws of Warfare: The Old and the New Law”, in A. Cassese (ed.), The New Humanitarian Law of Armed Conflict (1979) pp. 232-257; see also W.A. Solf in M. Bothe, K.J. Partsch and W.A. Solf, New Rules for Victims of Armed Conflicts (1982) pp. 312-315. Introducing in 1975 an amendment to this effect in Committee III, the present author emphasized that acceptance of the proposed ban on reprisals against civilians and civilian objects alike “would make it an urgent task for the Conference to continue its search for other mechanisms that could effectively contribute to enforcing the rules on protection of the civilian population.” 14 O.R. p. 114: CDDH/III/SR.14, para. 26. The vote in Committee III was 58 in favour, 3 against, with 9 abstentions; 14 O.R. p. 219: CDDH/III/SR.24, para. 16.

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ceptable. To the last, the French delegates in particular did their utmost to convince the Conference of the folly of its set course. At various stages of the proceedings they submitted proposals designed to substitute for the categorical prohibition of reprisals against the civilian population, rules that would place recourse to such measures under legal constraints, more or less along the lines already suggested in 1929 by the British delegate to the Diplomatic Conference of that year. The main thrust of their proposals was to preserve at least the right to threaten such reprisals: they repeatedly expressed the hope that acceptance of their plans would effectively remove the need for the actual taking of such measures. But their efforts were in vain, the majority was not to be budged. Their last formal proposal was ultimately withdrawn simultaneously with a Polish counterproposal to insert in Protocol I a prohibition on all reprisals without exception against persons and objects protected under the Protocol. In the end, the whole list of specific prohibitions was accepted without change. As embodied in Part IV of Protocol I of 1977, it contains the following items: – Article 51(6): “Attacks against the civilian population or civilians by way of reprisals are prohibited.”

22

3 O.R. p. 323: CDDH/I/221, 19 Feb. 1975: proposal for a new Art. 74bis; ibid. p. 324: CDDH/I/221/Rev.I, 22 April 1976, revised version of the proposal.

23

Polish proposal for a new Art. 70bis: 3 O.R. p. 313: CDDH/III/103, 1 Oct. 1974; simultaneous withdrawal of French and Polish proposals: 9 O.R. p. 417: CDDH/I/SR.72, paras. 1-4. See also, for a fuller discussion of the negotiating history of these proposals, Bierzanek, loc. cit. note 19, in particular pp. 249-250. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted on 8 June 1977; 1 O.R. pp. 115-183; Schindler & Toman, p. 621. The Conference also adopted a Protocol on internal armed conflict: Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Noninternational Armed Conflicts (Protocol II); 1 O.R. pp. 185-198; Schindler & Toman, p. 689. Art. 51 reads in relevant part: 1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances. 2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. 3-5 … 6. Attacks against the civilian population or civilian objects by way of reprisals are prohibited. …

24

25

Belligerent Reprisals Revisited – –

– – –

26

27

28

29

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Article 52(1): “Civilian objects shall not be the object of attack or of reprisals.” Article 53 prohibits, without prejudice to the provisions of the Hague Convention of 1954, making “historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples” the “object of reprisals.” Article 54(4): “These objects [i.e., objects indispensable to the survival of the civilian population] shall not be made the object of reprisals.” Article 55(2): “Attacks against the natural environment by way of reprisals are prohibited.” Article 56(4) prohibits “to make any of the works, installations or military objectives mentioned in paragraph 1 [i.e., works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating

Art. 52 continues as follows: 1. … Civilian objects are all objects which are not military objectives as defined in paragraph 2. 2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. … Art. 53 reads as follows: Without prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it is prohibited: (a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; (b) to use such objects in support of the military effort; (c) to make such objects the object of reprisals. Art. 54 provides as follows: 1. Starvation of civilians as a method of warfare is prohibited. 2. It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population… 3. … 4. These objects shall not be made the object of reprisals.…

Art. 55(1) provides that: Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage…

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Besides these prohibitions in Part IV (Civilian Population), also Part II (Wounded, Sick and Shipwrecked) contains an (entirely non-controversial) prohibition of reprisals “against the persons and objects protected by this Part.” Shortly after these events, a conference met in Geneva under the auspices of the United Nations (1979-1980) to examine possible prohibitions or limitations on the use of specified conventional weapons. Among the texts it finally adopted one finds just one reference to reprisals. Article 3(2) of the Mines Protocol prohibits the setting of mines, booby-traps and other similar devices “either in offence, defence or by way of reprisals, against the civilian population as such or against individual civilians.” This amounts to a reaffirmation of the prohibition found in Article 51(6) of Protocol I of 1977.

30

31

32

33

Art. 56 reads in relevant part: 1. Works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population. Other military objectives located at or in the vicinity of these works or installations shall not be made the object of attack if such attack may cause the release of dangerous forces from the works or installations and consequent severe losses among the civilian population. [2, 3…] 4. It is prohibited to make any of the works, installations or military objectives mentioned in paragraph 1 the object of reprisals. 5. The Parties to the conflict shall endeavour to avoid locating any military objectives in the vicinity of the works or installations mentioned in paragraph 1… […] Art. 20; the “persons and objects protected by this Part” are, in the main, the wounded, sick and shipwrecked, whether military or civilian; medical and religious personnel; and medical units and transport; all of this as defined in Art. 9. The ban on reprisals in Art. 20 is, so to speak, a natural prolongation of the earlier prohibitions in Conventions I, II and IV of 1949. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, with annexed Protocols, of 10 October 1980; Schindler & Toman, p. 179. Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II).

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3 A Closer Look at the Legal State of Affairs, with Special Attention to Protocol I The main features of the above survey of existing prohibitions on belligerent reprisals may be summarized as follows: The Geneva Conventions of 1949 categorically prohibit reprisals against protected persons and objects in situations of international armed conflict. As the Conventions have been ratified or acceded to by nearly all States, old and new, the prohibitions on reprisals laid down in these instruments may safely be stated to be in force worldwide. The Hague Convention of 1954 equally categorically bans reprisals against protected objects in international armed conflicts. As this Convention has fewer parties, the ban is in force as treaty law between the parties. This leaves open whether in relations with or among non-parties, reprisals against cultural property are still permissible. Article 53 of Protocol I, with its prohibition of reprisals, provides a partial answer to this question. The answer is partial on two counts: Article 53 applies only to the narrower group of objects defined in this Article, and Protocol I has not so far been ratified or acceded to by a number of States. On the other hand, reprisals against cultural property in practice have never represented a particularly serious issue. The situation is different when it comes to the set of prohibitions in Part IV of Protocol I (and the single prohibition in the 1980 Mines Protocol). The state of customary international law with regard to reprisals against the civilian population and civilian objects continues to be a matter of considerable controversy. Moreover, at the Diplomatic Conference of 1974-1977 the proposals for their prohibition met with strong opposition. Even after their adoption the battle has continued virtually unabated. Due to their controversial nature, they cannot yet be regarded as anything but rules of treaty law, binding the parties to the Protocol but no one else. Their controversial character is demonstrated, first of all, by subsequent State practice. In the recent armed conflict between Iran and Iraq (whose representatives at the Diplomatic Conference of 1974-1977 had been among the majority condemning all reprisals against the civilian population and civilian objects) both sides openly and frequently resorted to reprisal bombardments directed against the enemy civilian population. And while the United Nations and others repeatedly condemned this practice, the belligerent parties apparently saw no reason to regard their acts as particularly reprehensible. Admittedly, neither Iran nor Iraq had become a party to Protocol I. At all events, the most the two belligerents were occasionally prepared to agree to was a temporary cease-fire (or, more 34 35

The list in Schindler & Toman, pp. 769-773 is based on a communication from UNESCO dated 28 July 1986; it contains 74 ratifications and accessions. On this, see Kalshoven, op. cit. note 1.

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accurately, a “cease-bombing”), each time renewing bombardments as soon as they saw fit. It may be noted in passing that their activities clearly failed to bring about a change in the other party’s behaviour: at no time did either party budge an inch under the impact of the bombs. Nor was this the first time for belligerents to gain this experience of the futility of so-called reprisal bombardments against the enemy civilian population: an earlier, well-known example is provided by the long series of such bombardments, carried out by belligerent parties during the course of the Second World War. Apart from these rather unfortunate events in the war between Iran and Iraq, the prohibitions on reprisals in Part IV of Protocol I have ever since their adoption been the target of more or less vicious attacks in scholarly writings. It is here the place to enter into some of these arguments. 3.1 Are the Prohibitions on Reprisals in Part IV of Protocol I Militarily Acceptable? The most far-reaching criticism appears to be that the prohibitions at issue here are unacceptable from a military point of view. It may already be read in the brief comment by G.I.A.D. Draper that with the enactment of these prohibitions “the content of the humanitarian law of war has been extended, with some precision, to battle conduct. This places a heavy strain upon the residual methods of law enforcement.” The criticism has been voiced more explicitly in the United States of America. The official position of the Joint Chiefs of Staff appears to be that the “total elimination of the right of reprisal” is among the factors rendering Protocol I “unacceptable from the point of view of military operations” as it “would hamper the ability of the United States to respond to an enemy’s intentional disregard of the limitations established in the Geneva Conventions of 1949 or Protocol I, for the purpose of deterring such disregard.” In the same vein, Guy Roberts argues “that Protocol I goes beyond a simple prohibition on reprisals against civilians to protect a number of objects of economic and military value as well [i.e., the objects protected under Articles 53-56]. Attacks and threatened attacks on such

36 37

38

Ibid., p. 358. G.I.A.D. Draper, “The Implementation and Enforcement of the Geneva Conventions of 1949 and of the Two Additional Protocols of 1978”, 164 Hague Recueil (1979-II) pp. 9-53, at p. 35. A.D. Sofaer, “The Rationale for the United States Decision Not to Ratify”, 82 AJIL (1988) pp. 784-787, at p. 785.

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resources might well influence even the most callous enemy to refrain from further attacks on friendly civilians and their property.” While these views appear to regard the military utility of reprisals against the enemy civilian population or civilian objects as an element in the general framework of military operations, the British author, Christopher Greenwood, going one step further, undertakes to demonstrate the military indispensability of such reprisals. Taking as his point of departure the mixture of Geneva law and Hague law in Part IV of Protocol I, he argues that observance of some of the rules in Articles 51-56 “will restrict the options open to an army engaged in hostilities and will, in many cases, require such an army to sustain greater casualties than it would otherwise do in order to minimise the loss of civilian life.” This leads him to conclude that: a State which disregards its obligations under Part IV of Protocol I may derive a considerable military advantage from doing so. For example, attacks on dams, dykes or nuclear electrical generating stations, which in most circumstances are prohibited by Article 56, may seriously damage the victim State’s capacity to wage war … In such a case, the need to respond and to prevent future violations becomes more than simply a matter of law enforcement, it may be essential if the victim is to avoid defeat.

The present author believes, with Greenwood, that Part IV of Protocol I represents a mixture of Geneva-law and Hague-law impulses, in that it seeks to protect the civilian population by means of rules regulating certain features of the conduct of military operations. He is less convinced by the rest of the argument with its implicit criticism that the prohibition of reprisals against the objects specified in Articles 53-56 must be qualified as unreasonable. For one thing, the argument appears rather far-fetched as regards the provisions in Articles 53-55 for the protection of cultural objects, objects indispensable 39

40

41

G.B. Roberts, “The New Rules for Waging War: The Case Against Ratification of Additional Protocol I”, 26 Virg. JIL (1985) pp. 109-170, at p. 143-144. G.H. Aldrich, in his response to Roberts’ attack on Protocol I, agrees that “the Protocol may have gone too far in prohibiting reprisals”: “Progressive Development of the Laws of War: A Reply to Criticisms of the 1977 Geneva Protocol”, ibid. pp. 693-720, at p. 710. C.J. Greenwood, “The Twilight of the Law of Belligerent Reprisals”, 20 NYIL (1989) pp. 35-69. An earlier version of this essay was given as a paper to the British Institute of International and Comparative Law and published in M.A. Meyer (ed.), Armed Conflict and the New Law (1989) pp. 227-250. Greenwood’s interpretation of some of these provisions reminds the reader of objections raised by certain military circles after the adoption of the Protocol. Their objections may stem not so much from a genuine concern that faithful application of the provisions in question would expose their armed forces to an increased risk of casualties, as from a certain reluctance to accept a set of rules not of their own making and, where necessary, adjust their operations plans to the precise terms of these rules.

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to the survival of the civilian population and the natural environment. These provisions, which with some justification have been characterized as actually belonging to Geneva law, either add little to existing general obligations or have been so phrased that military considerations are heeded to the maximum. The only provision where the argument might be felt to cut some ice is the one Greenwood advances as his single example, on the protection of works or installations containing dangerous forces enumerated in Article 56. After all, this Article prohibits attacks on such objects even when they constitute military objectives; i.e., according to the definition in Article 52(2), when they “make an effective contribution to military action” and their “total or partial destruction … in the circumstances ruling at the time, offers a definite military advantage.” Obviously, an attack on a work or installation protected by Article 56 can only yield a military advantage if the chosen object actually constitutes a military objective. A simple perusal of the Article reveals that in such a case, the prohibition to attack applies solely if the attack “may cause … severe losses among the civilian population.” In view of the forces involved, this requirement in many instances may be little more exacting than the general obligation in Article 57(2)(a)(iii) to refrain from attacking any military objective if the attack may be expected to cause civilian losses “excessive in relation to the concrete and direct military advantage anticipated.” Moreover, the special protection ceases and attack becomes permissible, generally speaking, if the object is used “in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support.” Thus, while Article 56 incontestably lays down Hague law-type rules relating to the conduct of military operations, and while compliance with these rules may at times require some distinct adjustment of military planning, it appears somewhat exaggerated, to put it mildly, to maintain that such compliance would as it were by definition entail major military disadvantage as well as the risk of greatly increased casualties among a party’s armed forces. But let us suppose for the sake of argument that an attack in flagrant disregard of Article 56 on a “dam, dyke or nuclear electrical generating station” actually brings the enemy the feared significant military advantage: will this necessitate a reprisal in kind (i.e., in disregard of Art. 56(4)) to restore the military balance? Obviously, everything depends here on the situation, and one cannot discard offhand, as entirely implausible, that in a given case such recourse to reprisals would make military sense. It should be emphasized, however, that this would require a rather unusual confluence of circumstances:

42

43

H. Meyrowitz, “Die Repressalienverbote des I. Zusatzprotokolls zu den Genfer Abkommen vom 12. August 1949 und das Reziprozitätsprinzip”, 5 Neue Zeitschrift für Wehrrecht (1986) pp. 177-193, at p. 182. For the text of Art. 56, see supra note 30.

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(1) there must be reason to fear a recurrence of the original occasion, in the shape of an attack on another “work or installation containing dangerous forces” in the territory of the victim of the first attack. If no such risk exists, there is no ground for any measure aimed at preventing a recurrence; (2) there must be a comparable object, belonging to the same class of “dams, dykes and nuclear electrical generating stations” and situated in the territory of the enemy; (3) an attack on that object must be feasible and, in the circumstances at the time, yield at least equivalent military advantage; (4) the attack must be expected to entail civilian losses in the same order of severity as those caused by the initial breach of the law. Only if all these conditions are fulfilled can the reprisal attack in breach of Article 56(4) be said to constitute a genuine reprisal as well as an effective military operation against an object of significant military value. It will probably be conceded that the likelihood of such a concurrence of favourable circumstances is slight at best. The territory of the enemy may provide no dam, dyke or nuclear power station worth attacking from a military point of view (so that the military balance cannot be restored). Or the object in question can be attacked without exposing the civilian population to severe losses (so that the attack is simply legitimate so long as the chosen object constitutes a military objective). Or, the other way round, the object can only be attacked at the risk of civilian losses far graver than those caused by the initial attack in violation of Article 56 (so that the requirement of proportionality inherent in the notion of reprisal cannot be respected). With that, the argument of the indispensability, from a military point of view, of the capacity to resort to reprisals in response to a violation of Article 56, for all practical purposes loses its cogency. Put differently, recourse to reprisals in a hypothetical situation such as described above is just that: a reprisal against the enemy civilian population, serving at best (i.e., unless it is an act of pure retaliation) to bring the message home that attacks against objects protected under Article 56 shall not be tolerated. Thus, although the main provisions in the Article may aim at accommodating conflicting military and humanitarian considerations, the prohibition of reprisals in this as in the other named Articles (53-55) should be regarded as a measure purely for the protection of the civilian population and, hence, as one essentially humanitarian in nature. 3.2 Are the Prohibitions on Reprisals in Part IV of Protocol I Desirable? Another, somewhat milder criticism questions the desirability of the prohibitions on reprisals against the civilian population. It was heard shortly after the adoption of Protocol I, at an international symposium organized by the Netherlands Red Cross Society and held in September 1978 in The Hague. Sir David HughesMorgan, a British military lawyer who had been a prominent member of the

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British delegation to the Diplomatic Conference of 1974-1977 and who in that capacity had cooperated closely with the French delegation in their attempts at finding rules limiting rather than banning recourse to reprisals against the civilian population, stated in his introduction that in his opinion: It may be that the Geneva Diplomatic Conference did not appreciate the clear distinction between retaliation, which is always unlawful, and reprisals which in law are governed by strict conditions. If there are serious and long term attacks upon the civilian population of a country at war, in breach of the provisions of the Protocol, it is likely that public opinion would demand that similar action be taken against the enemy and there is an argument for suggesting that this latter action should be controlled by legal norms rather than become uncontrolled and unlawful retaliation.

In the discussion, he added that he “felt that reprisals or the threat of reprisals has been a factor in the enforcement of law.” Responding to this argument, the present author conceded that a difference exists between reprisals carried out and reprisals merely threatened, as well as the fact that the threat of such measures against the civilian population has occasionally proved effective. He maintained, however, that their execution has never demonstrably been so. Sir David thereupon gave expression to his sense of bewilderment at the whole matter when he said that: It is a very, very difficult problem indeed, because who wants to be in a position to say “we are making law” but allows you to attack the civilian population, even to stop the breach; nobody does. It is purely a question as to whether it is going to be an effective means of control. And frankly, what one is doing here is tossing a coin in the air, and depending on which side it comes down you either do this or do that. You are not going to know in either case what its effect is going to be.

More recently, views very similar to those of Sir David Hughes-Morgan were voiced in an essay by another British lawyer, Françoise Hampson. After a careful analysis of the legal situation and the negotiating record of the Diplomatic Conference she writes that: It is regrettable that States should require such a deterrent or such a violent reminder of their obligations. In suggesting, however, that “the threat of recip44

45

The New Humanitarian Law in War and Conflict, report of an international symposium held on 25-26 Sept. 1978, under the auspices of the Netherlands Red Cross Society, at the Peace Palace in The Hague, p. 11. Ibid., pp. 32-34.

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rocal treatment would always be real to those who violated the rules of humanitarian law … but that a formal legalisation of reprisals would be an invitation to misuse and abuse”, the Swedish delegate to the Diplomatic Conference and those who supported his point of view did nothing for the protection of victims of armed conflicts. On the contrary, in refusing to set practicable limits to reprisals whilst recognising that they will in fact happen, they condemned those victims to arbitrary, unpredictable breaches of humanitarian law which might not otherwise have taken place. The Diplomatic Conference missed an opportunity to make humanitarian law “a living reality rather than a series of hopeful aspirations” and, in so doing, did a disservice both to the rule of law and to humanity itself.

The present author has much sympathy for Ms. Hampson’s sense of frustration at what she evidently, and with some right, considers a less than perfect solution to an awfully difficult problem. Yet he believes she is rather too harsh in her judgment of some of those who, like the Swedish delegate at the Diplomatic Conference, were instrumental in bringing the solution about. For one thing, she may be insufficiently aware of the sheer force of events that led to the result she rejects. In actual fact, the choice was never between prohibition or regulation of reprisals against the civilian population and civilian objects. It was, rather, between accepting (or acquiescing in) an expansion of the list of prohibited reprisals with these specific items or having to face a categorical ban on all belligerent reprisals without exception. In these circumstances, the choice was not really a difficult one. There was, for one thing, the incontestably dubious efficacy of reprisals against the civilian population and civilian objects. For another thing, the Conference also introduced, in Article 90 of Protocol I, fact-finding machinery that, even though optional, in the end may prove to be a somewhat more effective, and at all events non-destructive, means of preventing the recurrence of gross violations of the rules for the protection of the civilian population. Apart from this argument of conference diplomacy, the present author sees ground for a more fundamental objection to Ms. Hampson’s conclusion. Her expression of regret at the fact “that States should require such a deterrent or such 46 47

48

F.J. Hampson, “Belligerent Reprisals and the 1977 Protocols to the Geneva Conventions of 1949”, 37 ICLQ (1988) pp. 818-843, at p. 843; footnotes omitted. See the history of the French and Polish proposals for new articles aiming, respectively, to restore and regulate the right of reprisal, or to ban all reprisals; supra, text at notes 22, 23. Interestingly, the Polish delegate made the withdrawal of his proposal for a ban on all reprisals “conditional on the agreement by other delegations, that the proposed fact-finding commission should be optional”; supra note 23, para. 4. The Polish view at the time was, of course, that such a commission of individuals empowered to investigate violations of the law of armed conflict was totally unacceptable.

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a violent reminder of their obligations” appears to presuppose that States, when so reminded, will in effect mend their ways. Unfortunately, experience shows that they rarely if ever do so react, especially if it is not a matter of a “deterrent” (a threat of reprisal) but of a “violent reminder” (the reprisal carried into effect). In the situation at issue, the outcome will be an ever increasing number of victims among the civilian population on both sides. And no matter what one may say about its changed role in present-day armed conflict, it appears certain that in many (perhaps most) countries the population is an instrument in the hands of those in power, rather than the other way round. Ms. Hampson’s view, in short, appears to be based on a rather over-optimistic view of what reprisals as a means of law enforcement can achieve, combined with an underestimation of the adverse effects inherent in such measures. The present author therefore remains firmly committed to the view that the prohibition of reprisals against the civilian population and civilian objects, even though not an entirely satisfactory solution to a well-nigh intractable problem, is at least to be preferred to the previous lack of legal clarity. There is, furthermore, a possible misunderstanding as to the precise meaning of the statement made by the Swedish delegate. His words seem to reflect no more than the simple truism that “those who violate the rules of humanitarian law” always have to consider the risk of negative “reciprocal treatment”, and this, as he said, “irrespective of any legal rules”, i.e., even if recourse to reprisals is formally outlawed – or regulated, for that matter. And, one may add, whether such “reciprocal treatment” is actually threatened or not. It may also be noted that the effect of this awareness on the actions of a potential violator will depend on many factors: Is he, so to speak, a first offender or a hardened criminal? Is he at all inclined to heed the law? How does he calculate the cost effectiveness of the contemplated violation in the light of the threat of a negative reaction? Is he 49 50

See the fascinating discussion by G. Best, “Civilians in Contemporary Wars: A Problem in Ethics, Law, and Fact”, 35 Air University Review (1984) no. 3, pp. 29-40. It may be useful to quote the relevant paragraph from Mr. O. Bring’s statement in full: In the Working Group his delegation had opposed the proposed article regulating the permissibility of reprisals. Several delegations had sought to explain such opposition by the emotional revulsion generated by the very word “reprisals”. His delegation had pointed out that its stand was based not on an emotional reflex but on the knowledge that in practice counter-measures never led to observance of the law. It had attempted to show that the threat of reciprocal treatment would always be real to those who violated the rules of humanitarian law – irrespective of any legal rules – but that a formal legalisation of reprisals would be an invitation to misuse and abuse. Sweden had attempted to weigh up the pros and cons of the idea of reprisals and had found that the balance was against it. It was therefore with a sense of satisfaction that his delegation noted that the results achieved by the Conference aimed at a further limitation of the institute of reprisals in customary law. 6 O.R. p. 210: CDDH/SR.42, para. 35.

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under any particular pressure to go ahead regardless? In a word, it is by no means certain that a threat of reprisals will actually ward off the violation, or the recurrence of violations. And if it fails to bring about the desired effect, the chances that actual execution of the reprisal will do so are at best slim. For, once again, there is precious little evidence that actual recourse to reprisals against the enemy civilian population has ever led to such a positive outcome. It may be objected that in the past, such measures were never genuine reprisals in the legal sense of the term: i.e., measures preceded, whenever possible, by a formal warning and carried out with due respect for the requirements of the law, notably the condition of proportionality. Put differently, bombardments such as the ones carried out in World War II and in the war between Iran and Iraq may have been reprisals in name but in fact were wilful attacks on the enemy civilian population as such, carried out as part of a strategy to break the enemy’s backbone and with the reprisal argument merely serving as a flimsy excuse. The objection is probably correct; in effect, the present author has earlier come to precisely that assessment with respect to the events of the Second World War. But it cannot support the conclusion that rather than being prohibited outright, recourse to reprisals against the enemy civilian population ought to have been made the subject of legal regulation. After all, even at the time of that war (when, in apparent contrast with the armed conflict between Iran and Iraq, the law of armed conflict played a distinct role) there existed “the clear distinction between retaliation, which is always unlawful, and reprisals which in law are governed by strict conditions” (to quote Sir David Hughes-Morgan’s words). Yet, although the belligerents frequently sought to justify their acts as measures of reprisal against the enemy civilian population, none of these so-called reprisals appear to have been genuinely “governed” by the existing “strict conditions”. This rather corroborates the conclusion that the chances for any such formal regulation to exert any significant influence on the behaviour of belligerents are slight at best. In these circumstances, this author cannot subscribe to Ms. Hampson’s conclusion that “The Diplomatic Conference … did a disservice both to the rule of 51

52

The present author suggested earlier (at the 1978 Hague symposium, supra note 44) that the prohibitions of recourse to reprisals in Arts. 51-56 do not exclude the power of belligerents to threaten such reprisals. W. A. Solf has objected that the argument is fallacious because “a threatened reprisal will be regarded as a bluff if made by a Party which usually complies with the law of armed conflict. The credibility of such a threat is enhanced only if there is a general cynical attitude about the effectiveness of conventional restraints on the use of force.” Solf, op. cit. note 19, p. 315. The criticism is repeated by Roberts, loc. cit. note 39, p. 142. While this once again amounts to a matter of “tossing a coin in the air”, this author is not convinced by the criticism. In his view, the potential effect of a threat of reprisal depends at least as much on the circumstances on the side of the “threatee” as on that of the “threator”. See Kalshoven, op. cit. note 1, pp. 177-178, 358.

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law and to humanity itself.” On the contrary, for the Conference to have regulated and thereby formally condoned reprisals against the civilian population and civilian objects would have risked creating a dangerous illusion of “rule of law” where law, unless supported by strong enforcement machinery, cannot be expected to reign. Paradoxically, once such effective enforcement machinery is in force, it is likely that it will not serve in the first place to make belligerent parties respect the strict conditions governing recourse to reprisals. On the contrary, its main effect will probably lie in the removal of the very need to take reprisals. This points, once again, to the urgent necessity of bringing to life the International Fact-Finding Commission of Article 90, Protocol I, and of having its competence accepted by ever more States party to the Protocol. In this respect, it is a fortunate circumstance that the establishment of the Commission no longer appears to be a matter of some distant future. 3.3 Are the Prohibitions on Reprisals in Part IV of Protocol I Reservable? Arguments like the above in support of the rules prohibiting recourse to reprisals against the civilian population and civilian objects are not always sufficient to withhold governmental circles from contemplating the possibility of entering a reservation to the rules at issue. Protocol I is silent on the matter of reservations: it neither limits nor permits them. In these circumstances, the question arises whether such a reservation would be permissible, given that Article 19(c) of the Vienna Convention on the Law of Treaties declares reservations inadmissible that are “incompatible with the object and purpose of the treaty.” In this respect, Roberts notes that “Several delegates at the Diplomatic Conference declared that the prohibitions banning recourse to reprisals must be non-reservable”, and he concludes that were the United States to accompany its eventual ratification of Protocol I with such reservations “it can be expected that several states will reject the reservations and possibly preclude the entry into force of the Protocol between the United States and the objecting state.” Aldrich does not share the same concern: although rejection of treaty relations “is, of course, conceivable” he doubts that it would happen. 53

Art. 19 reads as follows:

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A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: (a) the reservation is prohibited by the treaty; (b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or (c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty. Roberts, op. cit. note 39, p. 145. In the same sense: Bierzanek, op. cit. note 19, p. 255. Loc. cit. note 39.

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To this author, there is no straightforward answer to the above question. Especially as regards the rules in Protocol I on general protection of the civilian population, it is difficult to go any further than the obvious statement that such general protection is the “object and purpose” of these rules and, indeed, is one of the major “objects and purposes” of the Protocol. Opinions may differ, though, as to whether the prohibitions on reprisals are indispensable tools to achieve this lofty objective. On this score, one might devise the following argument. Starting out from the proposition that the general protection of the civilian population against the effects of hostilities indubitably represents one of the basic objectives of Protocol I, it is probably fair to say that the prohibitions on reprisals were added to promote that objective. Yet, even while fully accepting the wisdom of the primary rules for the protection of the civilian population as well as the good faith of those States who were responsible for the bans on reprisals added to those rules, a State may be convinced in equally good faith that these additions were ill-conceived. It may, in effect, be unshakable in its belief that to better realize this particular basic objective it must retain the power, for the event of its civilian population being exposed to attacks in gross violation of the rules of the Protocol, to subject the enemy to the same treatment (i.e., reprisals in kind). In reserving the right to do so it might make the point explicit that any such recourse to reprisals would remain subject to the rules of customary international law, namely, subsidiarity, proportionality and discontinuance as soon as the purpose has been achieved. The next question would then be the acceptance of such a reservation by other States party to the Protocol. Whether to accept or object to a reservation is a matter left to the discretion of States. In the present instance, acceptance would constitute the reserving State a party to the Protocol in relation to the accepting State and would give both States the right, in the event of an armed conflict between them, to take reprisals against the other’s civilian population. Objection, on the other hand, may or may not preclude the entry into force of the Protocol as between the reserving and the objecting State, dependent on the expressed intention of the latter party. If it were to limit the scope of its objection to the reservation itself while for the rest accepting that in the event of an armed conflict the Protocol will apply in its relations with the reserving State, the consequence would be, in the terms of Article 21(3) of the Vienna Convention on the Law of Treaties, that “the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation.”

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Kalshoven, “The Belligerent Reprisals in the Light of the 1977 Geneva Protocols”, op. cit. note 19, pp. 40-42. While the matter of acceptance and objection to reservations is not without controversy, the above text simply relies on Arts. 19-21 of the Vienna Convention on the Law of Treaties.

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At its most restrictive, the quoted phrase would simply leave the provisions banning reprisals inapplicable in an armed conflict between the two parties. With this reading, the effect of objection would be indistinguishable from that of acceptance. There is another conceivable interpretation, though. For the objecting State, the prohibitions on reprisals may be so inextricably linked to the other rules for the protection of the civilian population and civilian objects that in its relations with the reserving State, it is not prepared to consider itself bound by the entire section of the Protocol on that subject. This would imply that as between these two States, the whole matter of protection of the civilian population, including recourse to reprisals, is left to customary law. Pierre-Henri Imbert, writing on the theory and practice of reservations to multilateral treaties, has suggested yet another distinction between acceptance and the “soft” variety of objection without refusal of treaty relations. In his submission, the latter reaction provides a starting-point for consultations between the two States concerned, with a view to establishing how the reserved provisions should be applied (in case of a reservation to part of a provision) or by what rules they should be substituted. In contrast with plain acceptance, the “soft” objection could thus set in motion a negotiating process that in the most favourable case might even result in a withdrawal of the reservation. Needless to say, for someone who, like the present author is a confirmed supporter of the prohibitions on reprisals in Protocol I, this would be a particularly desirable outcome, especially in view of the conceivable alternative of a total non-application of the conventional rules in the Protocol on the protection of the civilian population. This author has earlier had occasion to raise another point in the discussion about the acceptability and desirability of reservations to the bans on reprisals in Protocol I. After having argued along the lines indicated above, that a State could in good faith consider itself entitled to make such a reservation, he added that: a State which has not itself accepted the competence of the international factfinding commission of Article 90, Protocol I, and which thus has failed to contribute to realizing the one single alternative to reprisals against the civilian population which Protocol I provides, will by that fact alone be in a singularly weak position to object to the reservation, no matter how undesirable, which another State might formulate with respect to (part of ) the prohibitions on those reprisals. 58 59 60

For such a line of argument, see P.-H. Imbert, Les réserves aux traités multilatéraux (1979) p. 265. Ibid. at p. 266 et seq. Art. 90 provides, in the main, for an International Fact-Finding Commission consisting of 15 members of high moral standing and acknowledged impartiality to be established once not less than 20 contracting States have agreed to accept its com-

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At the time, his remark was addressed in particular at the communist States (as they then were). At the Diplomatic Conference of 1974-1977, these States had: (1) strongly upheld the sovereign right of States to make reservations; (2) repeatedly declared that reservations to the provisions prohibiting reprisals would be unacceptable and (3) been utterly opposed to the inclusion of Article 90. It is therefore gratifying to learn that the Soviet Union has accompanied its recent, most welcome, ratification of Protocol I with a declaration accepting the competence of the International Fact-Finding Commission of Article 90 – and, fortunately, has made no reservation to the reprisals provisions. In effect, no State has so far made such a formal reservation. Italy, however, has declared on ratification that it: will react to serious and systematic violations by an enemy of the obligations imposed by Additional Protocol I and in particular its Articles 51 and 52 with all means admissible under international law in order to prevent further violations.”

Although not in terms a formal reservation to the prohibitions in these Articles on reprisals against the civilian population and civilian objects, the declaration is sufficiently vague to admit of more than one interpretation. Under the most benign reading, it does no more than state the obvious: after all, States by definition have the right to “react to serious and systematic violations by an enemy … with all means admissible under international law in order to prevent further violations.” Even in this interpretation the ambiguity is that it appears at least to hint at the concept of reprisals. These undeniably belong to the “means admissible under international law” – admissible, that is, unless they are prohibited. Articles 51 and 52 of Protocol I do just that, and the Italian declaration does not explicitly exclude the operation of these prohibitions. In law, it cannot therefore reinstate that particular right of reprisal. Is the declaration, then, intended to serve as a reminder of the possibility of a threat of reprisal? However, to that end no special declaration is required as the provisions in question do not, strictly speaking, prohibit such threats. So, this interpretation leaves one wondering what made Italy go to all the trouble.

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petence as defined in the Article; members shall serve in their personal capacity; the Commission shall be competent to: (i) enquire into any facts alleged to be a grave breach as defined in the Conventions and the Protocol or other serious violation of these instruments; (ii) facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and the Protocol. 29 IRRC (1989) p. 591. 26 IRRC (1986) p. 114.

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One element in the declaration is of particular interest in this reading: it concerns the specific reference to “serious and systematic violations by an enemy.” This phrase echoes the terms of reference of certain human rights bodies. In the present instance, it may have been chosen to indicate that the dire consequences, darkly hinted at in the declaration, will materialize only when the situation has assumed the characteristics of a major “material breach” of Protocol I by the adverse party, as opposed, perhaps, to a mere incidental violation by an enemy field commander. One way of determining whether an act in breach of the rules for the protection of the civilian population signifies a “serious and systematic violation” will be to protest against the act, to demand the immediate termination of such acts, to threaten counter-measures … in short, to take all those steps which in law must precede actual recourse to reprisals, and which the French delegates to the Diplomatic Conference of 1974-1977 would have wished to see incorporated in a regulation of reprisals in Protocol I. This goes to show, once again, how close the Italian declaration comes – not necessarily to a blunt all-out reservation to the prohibitions on reprisals in Articles 51 and 52 but – to the indication of an intention to set those prohibitions aside when the situation turns really serious: a “worst-case reservation”, so to speak. This already alludes to the other possible interpretation of the Italian declaration. The phrase “all means admissible under international law” may in effect be read as referring to means admissible under general international law. This might be intended to exclude and thus overrule special treaty provisions such as the ones in Articles 51 and 52 of the Protocol. With this interpretation, the declaration would indeed amount to an outright reservation to the prohibitions of reprisals in those Articles. In this light it may be of interest to note that to the present day, no State has objected to the Italian declaration. If anything, this is evidence of the care with which it has been phrased. 4 Areas where Reprisals Are Not Formally Prohibited There remain some areas of the law of armed conflict where recourse to belligerent reprisals may still appear permissible. One author claims there is a lacuna in Part IV of Protocol I on the protection of the civilian population. Not open to doubt is that Part III on “Methods and Means of Warfare” (Arts. 35-42) does not refer to reprisals in any way, whether in the shape of a prohibition or otherwise. The same holds true (with the one exception mentioned previously) for the 1980 Conventional Weapons Convention with its annexed Protocols, as well as for the much older Geneva Protocol for the Prohibition of the Use in War 63

Meyrowitz regards the Italian declaration as an outright reservation of the right of reprisal; op. cit. note 42, p. 192.

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of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare, of 17 June 1925 (the 1925 Gas Protocol for short). And unfortunately, similar silence reigns in the law relating to internal armed conflicts. It now remains for us to examine to what extent silence in these instances implies a continued right of reprisal. 4.1 A Loophole in Part IV of Protocol I? The French author, Henri Meyrowitz, has raised the following curious point about an alleged loophole in the provisions in Part IV of Protocol I that aim to protect the civilian population against attacks by way of reprisal. Suppose a party is the victim of indiscriminate attacks as prohibited specifically by Article 51(4) and (5). Is it not the case, he wonders, that under the terms of those provisions a reprisal in kind has remained permissible? His ingenious argument appears to be that rather than taking the civilian population as its object, such a reprisal attack would after all be directed, no matter how loosely, against one or more military objectives in enemy territory. He is not very firm in his conclusion, though: while stating that according to general rules of interpretation the question seems to warrant a positive answer, he hastens to add that such a reprisal in kind may easily and in good faith be taken for an attempt to circumvent the prohibitions in Articles 51(6) and 52(1). To the present author, the argument must be rejected, not just on account of the difficulty signalled by Meyrowitz but because the argument itself is rather too ingenious. The ground rule on treaty interpretation, as laid down in Article 31 of the Vienna Convention on the Law of Treaties, is that “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Meyrowitz’ argument rests exclusively on a literal reading of the provisions prohibiting reprisals in Articles 51 and 52 and appears completely to disregard their context and the “object and purpose” of Part IV of Protocol I. Taking these factors into account there is no doubt in my mind that the prohibitions on reprisals embedded in these Articles cover the Articles in their entirety and not merely those provisions specifically addressing attacks that take the civilian population or civilian objects as their object.

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Schindler & Toman, p. 115. Meyrowitz, op. cit. note 42, p. 185. The Convention was adopted by the UN Conference on the Law of Treaties on 22 May 1969 and opened for signature on 23 May 1969; text in A/CONF.39/27. In the same sense: Bierzanek, op. cit. note 19, p. 252.

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Means and Methods of Warfare

In discussing the question of the permissibility of reprisals in respect of the rules in Part III of Protocol I on means and methods of warfare, certain rules may be discarded straight away. This applies, for instance, to the rule in Article 35(1) that the right of belligerent parties “to choose methods or means of warfare is not unlimited.” It is difficult to envisage how this general principle could be susceptible to the right of reprisal – or to gross violation, for that matter. A similar comment may be made about the rule in Article 36 requiring a State to determine whether the employment of a new weapon would bring it into conflict with the law: a failure to fulfil such an obligation of implementation cannot seriously be regarded as a major breach of the Protocol. Other rules may be discarded for different reasons. This applies, first, to provisions found in the means-and-methods part of Protocol I but that are specifically designed to protect named categories of persons, such as the wounded and sick or medical personnel, against whom reprisals are forbidden. A case in point is the prohibition in Article 38(1) against making “improper use” of the red cross or red crescent emblem: without doubt, this rule must be regarded as covered by the prohibitions of reprisals in the First, Second and Fourth Geneva Conventions of 1949 as, indeed, by Article 20 of Protocol I. Another instance is provided by rules which, although not included in a section of the law specifically designed to protect the civilian population, may in effect be seen to serve that purpose. Provisions of this type are found, inter alia, in the Mines and Incendiary Weapons Protocols annexed to the Conventional Weapons Convention of 1980. Examples are: the restriction in Article 4(2) of the Mines Protocol on the use of certain mines in areas containing a concentration of civilians, and the prohibition in Article 2(1) of the Incendiary weapons Protocol against attacking the civilian population with incendiary weapons. In such cases, for a State party to Protocol I of 1977 the prohibition of reprisals against the civilian population governs these provisions as well. 68

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Art. 36 provides that “In the study, development, acquisition or adoption of a new weapon, means or method of warfare” a State party “is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited …”. On this, see F. Kalshoven, “Arms, Armaments and International Law”, 191 Hague Recueil (1985-II) p. 251 et seq. Art. 4(2) of the Mines Protocol prohibits the use of mines that are not remotely delivered and certain other devices “in any city, town, village or other area containing a similar concentration of civilians in which combat between ground forces is not taking place or does not appear to be imminent, unless … measures are taken to protect civilians from their effects.” The Article prohibits “in all circumstances to make the civilian population as such, individual civilians or civilian objects the object of attack by incendiary weapons.”

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With regard to the remaining general problem it may be recalled, first, that at the Diplomatic Conference of 1974-1977, a Polish proposal to insert into Protocol I a prohibition on all reprisals against persons and objects protected under the Protocol, was withdrawn simultaneously with the opposite, French, proposal to reintroduce and regulate recourse to reprisals. If anything, this implies that the Conference has left the matter to the development of customary law. It may be asked, therefore, in what direction customary law is developing and, perhaps, should develop. Specifically: can it not be argued that recourse to reprisals may sometimes be deemed unacceptable even where it is not formally prohibited? It is submitted that at least by way of analogy, Article 60 of the Vienna Convention on the Law of Treaties, on the consequences of a material breach, is of relevance here. Paragraph 2(b) provides that “A material breach of a multilateral treaty by one of the parties entitles … a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State.” According to paragraph 5, this general rule “[does] not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character…” While the general rule in paragraph 2(b) appears to be a codification of customary international law, the exception in paragraph 5 may more properly be regarded as a case of progressive development or, in other words, new conventional law. As such, it binds the parties to the Convention, and it can acquire general binding force only if it is in turn incorporated into customary law. While it seems open to doubt that this has actually happened, it is assumed here for the sake of argument, and without further investigation, that the rule in paragraph 5 is generally accepted as law. Suspension of the operation of (part of ) a multilateral treaty (i.e., the application of strict negative reciprocity) goes further than a mere reprisal in that, for the duration of the suspension, it effectively frees the “party specially affected” from all its obligations connected with the suspended (part of the) treaty. In contrast, recourse to reprisals under customary international law remains subject to a series of legal restraints. Legally, if in a specific case the party concerned is denied the customary right to suspend, this leaves this party’s equally custom-

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Supra, text at note 23. This author has advanced the argument developed in the text above on an earlier occasion: loc. cit. note 19, “The Belligerent Reprisals in the Light of the 1977 Geneva Protocols”. The present further development and, it is hoped, clarification of the argument is in response to some critical comments by Prof. George Aldrich. The text adds: “in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.” In the context of the present argument this phrase is irrelevant, as the question at issue is precisely whether reprisals are permissible where they have not been prohibited.

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ary but minor right of reprisal unaffected. Yet it may be argued that the moral ground underlying the prohibition of suspension renders recourse to reprisals equally undesirable. The question then is whether the instruments at issue here are “treaties of a humanitarian character”. It seems safe to state that Protocol I has this character, and so probably has the Conventional Weapons Convention (or, rather, the Protocols annexed to it). Actually, even the 1925 Gas Protocol may be deemed to qualify as such. But this is not enough: the next point to examine is whether the provisions in these instruments that have prima facie remained susceptible to reprisals are perhaps, in the sense of Article 60(5) of the Vienna Convention, “provisions relating to the protection of the human person.” For the time being, and in the absence of relevant State practice, the answer to this question is bound to remain a matter for individual appreciation. Even so, there is little room for doubt that a rule like the one in Article 41(1) of Protocol I “relates to the protection of the human person”: it provides that an adversary “who is recognized or who, in the circumstances, should be recognized to be hors de combat shall not be made the object of attack.” The same would seem to apply to the rule in Article 42(1) that “No person parachuting from an aircraft in distress shall be made the object of attack during his descent.” Yet, the two rules are not entirely similar in all respects. The enemy hors de combat, as defined in Article 41(2), is a person who either is in the power of the enemy or, if he is not, “clearly expresses an intention to surrender” or is unconscious or “otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself ”; provided always that he “abstains from any hostile act and does not attempt to escape.” In contrast, the “person parachuting from an aircraft in distress” may be full of fighting spirit and, indeed, be heading for territory controlled by his party, where a fresh plane is awaiting him. Put differently, the rule protecting the latter person in these circumstances also protects the military interests of the enemy. Conceivably, therefore, the part of the rule protecting even the airman who may be expected to reach the ground in territory controlled by his party might be held susceptible to encroachment by way of reprisal. Some other rules, e.g. on the prohibition or limitation of use of specified weapons, on the face of it seem to have been written solely for the protection of combatants. At the same time, there may be a military interest involved as well. When this is the case, the enemy may gain a considerable military advantage by using the weapon in violation of the rule. Depending on the situation, a reaction

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Meyrowitz rightly points out that the reprisal itself does not imply a suspension of the rule: a reprisal, whether or not in kind, serves precisely to uphold the rule or rules involved; op. cit. note 42, p. 178.

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by way of reprisal in kind may then be indispensable to restore the military balance. In contrast, the (complicated) rules on the prohibition of perfidy and the permissibility of ruses of war, in Article 37, may provide yet another example of rules “relating to the protection of the human person” whose violation by way of reprisal would serve no conceivable interest. It should be reiterated that the above reasoning does not aim to establish that by virtue of positive international law, reprisals in violation of this or the other rule of the law of armed conflict are unlawful even though the treaties do not explicitly say so. Its purpose is, rather, to demonstrate that application of the central idea in Article 60(5) of the Vienna Convention may lead to the conclusion that such reprisals are morally wrong … against Grotius’ moral justice, as it were, and therefore had better be avoided. 4.3 The Special Case of the 1925 Gas Protocol The 1925 Gas Protocol is a case apart. Its special situation arises from the fact that a number of States have accompanied their ratification or accession with a sweeping reservation to the effect that the Protocol ceases to be binding on the State in regard to any enemy State whose armed forces or whose allies fail to respect the prohibitions laid down in the Protocol. Most of these reservations were made long ago by the original signatories. In quite a few cases, the reservations were later simply “inherited” by newly independent States confirming their participation in the Protocol which (and hence, apparently, as it) had been made applicable to them by the former colonial power. In one case (Fiji) the reservation was expressly reiterated, in another (Barbados) it was withdrawn. Also Ireland, a reserving State since 1930, withdrew its reservation in 1972. Again, some newcomers made the reservation as well, in some cases with interesting additions. Thus, Israel specified in 1969 that its reservation would take effect also in the event of use of chemical means of warfare by “the regular or irregular forces or the groups or individuals operating from” the territory of an enemy State. Jordan, in 1977, simply stated that “it undertakes no commitment toward States whose regular or irregular armed forces do not observe the provi76

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Meyrowitz suggests that with respect to such rules, a State ratifying Protocol I might reserve the right to apply the customary principle of reciprocity; op. cit. note 42, p. 192. H. Grotius, De Jure Belli Ac Pacis, III, X, 1.1; and see F. Kalshoven, “Grotius’ Jus in Bello with Special Reference to Ruses of War and Perfidy”, in A. Dufour, P. Haggenmacher and J. Toman, eds., Grotius et L’Ordre juridique international (1985) pp. 89-100. For the facts mentioned in the text and for further detailed information, see the list of signatures, ratifications, accessions and notifications of continuity in Schindler & Toman, p. 117.

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sions of the Protocol.” The United States, one of the original signatories but ratifying only in 1975, attached the classical reservation without embellishments of the Israeli type. The result of this network of reservations is that in many cases the Protocol will apply as treaty law merely on the basis of plain reciprocity, and this not between reserving States alone but, on grounds of general treaty law, even if only one of the parties to an international armed conflict has made or maintained the reservation. A case in point is the recent war between Iran and Iraq. Both are parties to the Protocol (since 1929 and 1931, respectively). Iran did not make the reservation but Iraq did, and this entitled Iran to avail itself of Iraq’s reservation in the event of non-respect of the Protocol on the part of the latter State. Obviously, a State need not avail itself of its full rights under the reservation. In particular, it may prefer to reserve its reactions, in terms of the Italian declaration attached to its ratification of Protocol I, to events amounting to “serious and systematic violations by an enemy”: cases, in other words, where the employment of chemical weapons by the enemy has assumed large dimensions and threatens significantly to affect the military balance. There is, after all, little utility in the initiation of all-out gas war in reaction, say, to a mere whiff of tear-gas from the other side. Apart from the absence of utility, there would be an evident lack of proportion in such an unrestrained reaction. This brings us to a second set of restraints a victim State might apply in its reaction to “serious and systematic violations” of the Protocol. Even though, according to their terms, the effect of the reservations in force would be entirely to free it of its obligations under the Protocol for the duration of the armed conflict, it may confine itself to a proportionate reaction, using chemical agents no more harmful and against targets no less acceptable than the enemy has done, and terminating its reaction as soon as it becomes evident that the enemy has done the same. The victim State could, in other words, instead of giving the reservation its fullest effect, limit itself to a reprisal in kind. This might well prove to be the more commendable course of action, in terms of economy of force, harm done and result achieved. Even better, of course, would be altogether to desist from action in reprisal, unless urgent military reasons so require.

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It did, on the other hand, accompany its ratification with a long statement reserving the President’s right to resort to the use of tear-gases in certain well-defined situations; 40 US Federal Register, No. 70 (1975) p. 16187; reprinted in 14 ILM (1975) p. 794; see also Kalshoven, op. cit. note 69, pp. 269-270. Vienna Convention on the Law of Treaties, Art. 21(1)(b).

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Internal Armed Conflict

When it comes to the matter of reprisals in situations of internal armed conflict, the treaties in force are simply silent. This includes the texts specifically relating to such conflicts, viz., Article 3 common to the Geneva Conventions of 1949, Article 19 of the Hague Convention of 1954, and Protocol II of 1977. Needless to say, it would be too rash to conclude from this general silence that in such situations, reprisals are still widely regarded as an entirely acceptable mode of reacting to an adversary’s unlawful methods of waging war. Rather, the negotiating parties in the conferences of 1949, 1954 and 1974-1977 simply neglected, or expressly refused, to address the question of international legal restrictions on their freedom of action in this respect. Here the debate at the Diplomatic Conference of 1974-1977 is illuminating. One striking feature was the flat denial by some delegates that in a situation of internal armed conflict the notion of reprisal could apply at all. A working party set up to consider the question eventually emerged with a compromise solution, to the effect that certain provisions of Protocol II “shall not, in any circumstances or for any reason whatsoever, be violated, even in response to a violation of the provisions of the Protocol.” Even this proposal ultimately failed to muster sufficient support: in the plenary session of the Conference it was rejected by 41 votes to 20, with 22 abstentions. 81 82

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The neglect applies to the conferences of 1949 and 1954, the refusal to that of 19741977. As noted in the ICRC Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987) p. 1372 note 18, “Several delegations argued that rules on reprisals concerned only relations between States, as subjects of international law possessing facultas bellandi.” 10 O.R. pp. 181-296, at pp. 234-235: CDDH/405/Rev.1: Report of Committee I, Annex II: Report of Working Group B, Addendum: Report of Sub-Group on Reprisals in Draft Protocol II; pp. 217-219: consideration of proposals in Working Group B. 7 O.R. p. 109: CDDH/SR.51, para. 16. On the occasion of the vote, the representative of the United States of America, Aldrich, “said he hoped that if put to the vote, [the proposed article] would be rejected, since the whole concept of reprisals had no place in Protocol II”; ibid. p. 108: para. 7. In this, he was immediately supported by Dixit, the representative of India; ibid. para. 8. While Aldrich may have had a legal argument in mind, Dixit definitely was only considering the political aspect of the matter. I. Detter de Lupis suggests that the failure to incorporate reprisals in Protocol II may be a result of “the confused notion of belligerent reprisals as being undefined and mistaken for having similar characteristics and legal effects as State reprisals”: to her, “belligerent reprisals are of a completely different type: they are not used to retaliate against a State for what that State has done in violation of international law. In a large majority of cases it is individuals who have committed an act of hostility, perhaps in violation of the laws of war by using civilian status, or by abusing the protective status of an open town, and the reprisals are taken against other innocent

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How little consensus there had been even before this ultimate failure, may be gathered from the report of the working party. It notes that while some participants had suggested the deletion of the phrase “even in response to a violation of the provisions of the Protocol” (thus depriving the proposed text of its most salient part), others had wanted to see it replaced by the phrase “even for the purpose of inducing the adverse party to comply with its obligations” (which would for all practical purposes have modified it into a direct prohibition of reprisals). In this uncertain state of affairs, the ICRC takes a firm stand. Commenting on the character of the rules on humane treatment in Article 4(2) of Protocol II, it argues forcefully that these “are explicit and do not allow for any exception … They are absolute obligations.” This “also means that no derogation is allowed …” Indeed, “there is in fact no room left at all for carrying out ‘reprisals’ against protected persons.” Reminding the reader that it already put forward this interpretation in its commentary on Article 3 common to the Geneva Conventions of 1949, the Committee finds it now confirmed by the “strengthening of fundamental guarantees of humane treatment in Protocol II and, in partic-

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individuals, usually against civilians.” The Law of War (1987) pp. 254-255, 258. Needless to say, the present author does not endorse her redefinition of belligerent reprisals. Supra note 83. See also Bothe, Partsch, Solf, op. cit. note 19, pp. 636-637.

Art. 4 is headed “Fundamental guarantees”. Paras. 1 and 2 read as follows: 1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors. 2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph 1 are and shall remain prohibited at any time and in any place whatsoever: (a) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; (b) collective punishments; (c) taking of hostages; (d) acts of terrorism; (e) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; (f ) slavery and the slave trade in all their forms; (g) pillage; (h) threats to commit any of the foregoing acts. Op. cit. note 82, p. 1372: para. 4528. Supra note 17.

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ular, the inclusion of a prohibition on collective punishments …” With respect to this prohibition in particular, the ICRC notes that it: was included in the article relating to fundamental guarantees by consensus. That decision was important because it is based on the intention to give the rule the widest possible scope, and to avoid any risk of a restrictive interpretation. In fact, to include the prohibition on collective punishments amongst the acts unconditionally prohibited by Article 4 is virtually equivalent to prohibiting ‘reprisals’ against protected persons.

Having said all this, the Committee takes care to stipulate that its interpretation does not “[call] into question the refusal of the negotiators to introduce the legal concept of reprisals in the context of non-international armed conflict.” A nice job, one is inclined to comment. The Committee makes the most of its strong beliefs while reducing the “refusal of the negotiators” to a legal qualm. This may be something of an oversimplification, though. To be sure, there were those among the negotiators who held on legal grounds that reprisal is a mechanism that can operate only between sovereign States (as well as, apparently, between a State and a liberation movement, witness the inclusion in Protocol I of Article 1(4), which includes the so-called wars of national liberation among international armed conflicts). For quite a few others, however, the refusal to admit any specific reference to “reprisal” in Protocol II may have been not so much a matter of legal nicety as of stark reality, based on their conviction that in an internal armed conflict, harsh countermeasures may be indispensable and the law had therefore better stay silent on this point. The actions of parties to several recent internal armed conflicts regrettably serve to reinforce the impression that more than one government interprets the vacuum in the treaty law in force as an indication that in such a situation, whether of the Article 3 or Protocol II variety, their right to take reprisal-type measures (although of course not so named) continues unabated. In this situation and as far as substance goes, the present author finds himself unreservedly on the side of the ICRC. Yet in his view, the most convincing argument against such measures of reprisal does not lie in their alleged resemblance to measures of collective punishment: reprisals by definition are measures not of 89 90 91 92

Op. cit. note 82, pp. 1372-1373: paras. 4530-4531. Ibid. p. 1374: para. 4536. Ibid. p. 1373: para. 4531. Art. 1(4) provides that the situations to which it applies “include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.”

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punishment but of enforcement. It is and remains, rather, their general futility and escalating effect. This argument applies with equal force in internal armed conflicts as in international ones. For the rest, and in addition to the arguments adduced by the Committee, recourse to analogy may be of some help. Thus, when Part III of Protocol II explicitly extends protection to the wounded, sick and shipwrecked as well as to medical and religious personnel, this is a faithful translation of the comparable rules applicable in international armed conflict. As part of those rules, the prohibition of reprisals has become almost a matter of course. Therefore, it seems permissible to regard it as implied in the rules for internal armed conflict as well. When it comes to measures of reprisal against persons captured in the course of an internal armed conflict while taking part in hostilities, this line of reasoning faces an additional obstacle. In international armed conflict, captured combatants have the status of prisoners of war, and the prohibition of reprisals is specifically designed to protect them in that capacity. In internal armed conflict, the legal notions of combatant and prisoner of war do not obtain, and captured opponents fall under the protection of Part II of Protocol II (of which Article 4 forms part). A simple copying of the rule prohibiting reprisals against prisoners of war may therefore not seem permissible. As against this, it may be advanced that on the whole, the rules in Part II, and notably those in Articles 5 and 6, reflect the main principles governing the treatment of prisoners of war, so that the situation is really sufficiently similar to that of the wounded and sick so that the same principle should apply. Part IV of Protocol II lays down some basic rules for the protection of the civilian population. Needless to say, this is the area of greatest concern. At the Diplomatic Conference, many members of the majority that imposed its will when it was a matter of prohibiting reprisals against the civilian population in case of international armed conflict were equally firmly opposed to introducing the concept of reprisal in Protocol II. And it seems not at all unlikely that the reasons for their opposition were just about the same as the reasons why the minority was opposed to the prohibitions of reprisals in Part IV of Protocol I: simply stated, the fear that some day they might come to need the measures at issue. In these circumstances, and taking into account the relative novelty and controversial character of the prohibitions of reprisals against the civilian population and civilian objects in Part IV of Protocol I, this author would not venture to argue by way of analogy that as a matter of law, measures resembling reprisals against the civilian population are prohibited in internal armed conflict as well. Of course, this leaves the other practical and moral arguments against recourse to reprisals entirely intact: their dubious efficacy, their escalating effect, the harm they do both to the people chosen as targets and to one’s own standard of civilization – in one word, their general undesirability.

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Perspective

Where do we go from here? It seems safe to state that the time is not ripe for further efforts at legislation of the reprisal issue in the specific context of international humanitarian law. As far as international armed conflicts are concerned, the written law may have gone as far as it can, or, as some would say, even farther. The Geneva Conventions of 1949 bind virtually all States; and, while fewer States have consented to be bound by the Hague Convention of 1954, Protocol I of 1977 and the Conventional Weapons Convention of 1980, their numbers are impressive and, certainly in the case of the latter instruments, still rising. In no case – with the possible exception of Italy – has a State reserved its right to take reprisals in derogation of the provisions in these treaties expressly banning such recourse. Yet, ratification without reservation is not enough: what is needed now is the realization in practice of what was agreed on paper. More than anything, this requires a constant concern for, and propaganda in favour of, the faithful implementation of the law. Especially where the prohibitions on reprisals against the civilian population and civilian objects are concerned, this will require a great effort; but then, this is true of the entire set of rules for the protection of the civilian population. In this regard, special importance attaches to the speedy establishment and activation of the International Fact-Finding Commission provided in Article 90 of Protocol I. Always in the sphere of international armed conflict, there is the problem of the permissibility or otherwise of reprisals consisting in the non-observance of prohibitions or restrictions on the use of means and methods of warfare. This will probably remain a dark area for a long time to come: for one thing, because of the conflicting interests at stake, and for another in view of the (fortunate) rarity of situations where the conduct of belligerent parties could contribute to the development of practice. Meanwhile, the point should be emphasized that an absence of prohibitions does not necessarily mean permissibility, let alone advisability. As regards the retaliatory use of chemical weapons, the chances seem slim indeed that many States party to the 1925 Gas Protocol will soon follow the Irish example and give up their reserved right to suspend the operation of the Protocol as against any enemy whose armed forces, or whose allies, fail to respect its terms. More may perhaps be expected here, as in the case of bacteriological means of warfare, of the current attempts at banning these weapons altogether. Once such a ban would be effective, the need for retaliatory action in the event of breach would no longer exist. 93

As this author wrote earlier, “after the participants to the Conference, it will be the turn of the participants in actual hostilities to demonstrate their willingness to take, in terms of Article 57, paragraph 1 [of Protocol I], ‘constant care … to spare the civilian population, civilians and civilian objects’.” 9 NYIL (1978) pp. 107-171, at p. 146.

There remains the most vexing problem of all, and that is the complete silence on the reprisal question in the treaty law applicable in situations of internal armed conflict. The problem is all the more acute in view of the frequency of such conflicts and the recurrence of modes of conduct that in a situation of international armed conflict would amount to prohibited reprisals. As it is unlikely that the lacuna in Article 3 of the Geneva Conventions of 1949 and Protocol II of 1977 will soon be filled, other ways must be explored to improve the situation. One possibility, discussed above, is to use the argument by analogy as an instrument of moral persuasion against the current negative tendencies. Another element of hope consists in the great interest of public opinion in human rights issues. Given the close connections, especially where fundamental norms are concerned, between the international humanitarian law of armed conflict and international human rights law, there is an urgent need for a mobilization of public opinion and, indeed, of the various official and unofficial bodies established to ensure respect for human rights, in defence of those fundamental values reflected, for the event of international armed conflict, in the prohibitions on reprisals.

Chapter 35 The International Humanitarian Fact-Finding Commission: Its Birth and Early Years*

1

Introduction

The International Humanitarian Fact-Finding Commission, or IHFFC, owes its existence to Article 90 of the 1977 Protocol I Additional to the Geneva Conventions of 1949. Created as the “International Fact-Finding Commission”, without the “Humanitarian”, it is a treaty organ designed to play a role in the promotion of respect for international humanitarian law applicable in armed conflict. As a one-time participant to the diplomatic conference that adopted the Article and a member of the Commission in the first years of its actual existence, I offer this contribution on the IHFFC in homage to Professor Paul de Waart, a colleague who always was as actively interested in the institutional aspects of international affairs as in the interplay between facts and law. Why yet another fact-finding body alongside the many that already existed? Had we not witnessed in the post-Second World War years the emergence of a host of intergovernmental and non-governmental, global, regional or other committees, commissions, observer groups and rapporteurs, variously charged with the monitoring, reporting and pronouncing on matters as diverse as the maintenance of peace and respect for human rights? Absolutely; but although these organs occasionally were called upon to perform their functions in, or in relation * 1 2

Published earlier in E. Denters & N. Schrijver (eds.), Reflections on International Law from the Low Countries (1998), pp. 201-215. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I). Since the author of this paper is a member of the IHFFC, he wishes to emphasize that any views expressed herein are his own. Publications on the IHFFC include: Bernhard Graefrath, “Die Untersuchungskommission im Ergänzungsprotokoll zu den Genfer Abkommen vom 12. 8. 1949”, Wissenschaftliche Zeitschrift der HumboldtUniversität zu Berlin, Ges. Sprachw. R. XXX (1981), p. 9; Ashley Roach, “The International Fact-Finding Commission”, 281 IRRC (1991), p. 167; Ambassador Erich Kussbach, President of the Commission, note in 43 ICLQ (1994), p. 174 (discussing inter alia the relations between the IHFFC and the UN system of collective security, including the Security Council); Françoise Hampson, “The International FactFinding Commission: Fact-finding, Armed Conflicts and Article 90 of Protocol I”, in: H. Fox and M.A. Meyer (eds.), Effecting Compliance, Armed conflict and the New Law, Vol. II (1993) p. 53.

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to, situations of outright armed conflict, none of them had been created for the specific purpose of what broadly may be referred to as monitoring the observance in such conflicts of the law of war, or, in its modern connotation, international humanitarian law. Yet the need for such a specialized body follows as directly from the specialized character of the great majority of the rules of humanitarian law, as from the observable fact that armed conflict frequently entails allegations of violation of those rules and, in their wake, resort to retaliatory measures if the resultant tension fails to be defused in time. But, one may ask, is not this wartime monitoring business an obvious function for the International Committee of the Red Cross (or ICRC)? After all, that institution is wont to portray itself as the guardian of humanitarian law; more officially, its statutes specify as one of its tasks: “to work for the faithful application of international humanitarian law applicable in armed conflicts and to take cognizance of any complaints based on alleged breaches of that law.” Just so; but the core of its mandate and, indeed, its raison d’être lie in the equally statutory duty to protect and assist all the victims of armed conflicts, irrespective of their status or previous conduct; and this essentially victim-oriented task, the ICRC never fails to emphasize, is incompatible with a heavy focus on complaints about breaches that might get it involved in the active tracing and exposing of violations and violators of humanitarian law. The existence and functioning of the ICRC therefore did not need to be regarded as an obstacle to the creation of an organ specifically for the monitoring of international humanitarian law. Parties interested in such an endeavour found a suitable forum in the Diplomatic Conference referred to above. The negotiations at this Conference ultimately led to the adoption of a provision which enabled the establishment of what now is known by its acronym as the IHFFC. But, as we will see, it was no easy birth, and the early years were no walk-over either. The main focus of this paper is on the negotiating history of Article 90. By way of epilogue I will attempt a short evaluation of this birth process, in the light of the early difficult years of the Commission’s actual existence, which began as late as 1991. 2 The Drafting History of Article 90 On 31 May 1977, the Plenary Meeting of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (or, after its French acronym, CDDH) adopted Article 79bis 3 4

Statutes of the International Red Cross and Red Crescent Movement, Art. 5(2c). The CDDH met in Geneva in four yearly sessions from 1974-1977. Its work was done in three main Committees (plus an Ad Hoc Committee to study issues arising from the use of conventional weapons), which were open to all participants. Its Official Records (OR) have been published in 17 volumes by the Swiss Federal Political

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on the “International Fact-Finding Commission” for inclusion in Additional Protocol I (where it ultimately became Article 90). This concluded a process of drafting and negotiations which had gained momentum in March 1975 with the introduction of two proposals for a new draft article: one, by three Scandinavian countries plus New Zealand, and the other, by Pakistan. 2.1

First Proposals

Although both proposals in essence dealt with the same subject matter of inquiry into alleged violations of humanitarian law, they were as dissimilar as could be in every other respect. It is therefore something of a miracle that the Conference at the end of the road succeeded in adopting a unified text. How had this miracle been achieved: what had been the ideas behind the original proposals; what remained of these ideas, what other elements had crept into the text? The Pakistani proposal, the broader of the two, envisaged the creation of a “permanent Commission for the Enforcement of Humanitarian Law”: even by the sound of it, a project quite a bit more ambitious than mere monitoring. The commission was to have five members, one for each regional group of States and holding office for one year; plus one ad hoc member for each party to the conflict not already represented on it. Once “moved by a Party to the conflict or a Protecting Power” the commission would be competent to: (1) “enquire into any alleged violations of the Conventions and the present Protocol and other rules relating to the conduct of an international armed conflict”; (2) “take appropriate steps for the resolution of any disagreement amongst the Parties to the conflict regarding the interpretation or application of the Conventions and the Protocol where the conciliation procedure provided therein has failed”, and (3) endeavour to bring a party that failed to fulfil its obligations back to “an attitude of respect for and obedience to” the rules at issue. Its quasi-judicial procedure included written and oral phases, and provision was made for a right of cross-examination. And the commission’s reasoned report would be addressed to the parties to the conflict and the depositary of Protocol I (i.e., Switzerland). The main features of this proposal were therefore: a small permanent body with members nominated for a very short term and on the basis of regional representation; broad powers of inquiry, problem-solving, and restoration of respect

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Department, Bern, 1978. An article-by-article documentary survey of the negotiating history of Protocol I is found in Howard Levie, Protection of War Victims, Vols I-IV (1979-1981). CDDH/I/241 and Add. 1, 19 March 1975, proposing the addition of a new Article 79bis; the sponsors were Denmark, New Zealand, Norway and Sweden. CDDH/I/267 of 25 March 1975, likewise proposing the addition of a new Article 79bis. The Article was adopted by 40 votes to 18, with 17 abstentions; CDDH/SR/46; OR VI, p. 341.

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for the applicable rules of humanitarian law; and confidential reports to the parties. Last but not least, the commission’s powers would be compulsory, i.e., a complaint by one party to the conflict as well as to the Protocol would suffice to set the procedure in motion, with the consent of the other party being deemed implicit in its earlier consent to be bound by the Protocol. What had induced Pakistan to introduce so ambitious a proposal? Apart from genuine concern about the poor state of respect for humanitarian law, a very practical ground lay in its tense relations with its Indian neighbour, which had led to an armed conflict with huge numbers of prisoners of war being held by the latter State and, as a result, accusations of disrespect for the rules on the treatment and timely release of such persons. The four-power proposal likewise envisaged a permanent body: an International Enquiry Commission of fifteen members, appointed by, and according to procedures drawn up by, the ICRC, due account being taken of “the need for representation of different areas of the world” and it being specified that the ICRC would bear no responsibility, whether for the Commission’s enquiries or findings. The proposal was narrower in that the sole task of the commission would be “to enquire into any alleged violation of the Conventions and the present Protocol and other rules relating to the conduct of an international armed conflict.” The commission could undertake such an inquiry at the request of “one or more” parties to the conflict or, strikingly, on its own initiative. Requests of parties could focus in particular on grave breaches as defined in the Conventions and Protocol I. Inquiries would be performed by a chamber composed of the President with four members appointed in consultation with the parties to the conflict. The parties were invited to submit “evidence and argument”; evidence could also be accepted from international organizations, governments, non-governmental organizations and individuals; and every bit of “evidence and argument” would be disclosed to the (other) parties, “which shall have the right to comment on it.” The report of the chamber on facts and law would be public, “unless the Parties agree otherwise.” Here too, therefore, a permanent commission but with more members, appointed by the ICRC with due regard for the existence of different parts of the world. Its competence, compulsory on the same footing as in the Pakistani proposal, would be restricted to enquiring into alleged violations of the applicable rules, but with a right of initiative. The actual work to be done by chambers, composed largely with the consent of the parties; chambers to look both into facts and law, with a slightly less stringent procedure and with the help of source material (“evidence and arguments”) coming from all corners; and the reports of chambers to be public in principle.

8

Respectively, Articles 52 (I), 53 (II), 132 (III), 149 (IV), and 85 of Protocol I.

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Lacking any specific political motivation, the four-power proposal found its origin in the shared conviction that humanitarian law was at risk of becoming a dead letter if measures for its enhanced respect were not taken. 2.2

Committee I: Third Session

Discussion of the proposals began at the third (1976) session of the CDDH. Just before the start of the debate in Committee I (which dealt with general matters) the Japanese delegation tabled an amendment to the four-power proposal. This suggested, inter alia, to expand the powers of the commission with an express competence to inquire into “allegations that the provisions of the Conventions or of the present Protocol are about to be breached.” As explained by the Head of Delegation, Ambassador Akira Yamato, the suggestion was intended as a mitigation of the Pakistani proposal for a commission of “enforcement”, which, he felt, “was perhaps too far in advance of the development of humanitarian law.” The Japanese amendment doubtless was a most laudable proposition: after all, prevention is better than cure. It remained to be seen, though, whether it would not in its turn be regarded as “too far in advance of the development of humanitarian law”: read in conjunction with the commission’s right of initiative as provided in the four-power proposal, it had a fairly progressive look itself. Many delegates found it “rather vague”: a typically diplomatic way of expressing misgivings as to its acceptability. An absolutely killing (and much less diplomatic) comment came from Professor Karl-Joseph Partsch: speaking for the Federal Republic of Germany, he opined that the Japanese proposal “would be justified if a State were to announce that it was going to commit a breach.” The various proposals for a draft Article 79bis underwent a three-day scrutiny, which may be summed up as follows: There was broad, though no universal support for the establishment of a permanent commission. Its competence ratione materiae probably should be restricted to violations of the Geneva Conventions and Protocol I, leaving out the unspecified “other rules relating to the conduct of an international armed conflict.” Quite a few delegations rejected the suggestion, implicit in both proposals, of a compulsory competence that automatically would extend to all States Parties to the Protocol. The four-power proposal to grant the commission a right of initiative met with even more widespread opposition than did the Pakistani idea to give it an active role in the resolution of conflicts on interpretation or application of the Conventions or Protocol I. Opinion was divided on the wisdom of saddling the ICRC with the task of appointing the members, as provided in the four-power draft; on the other hand, the procedure

9 10 11

CDDH/I/316, 10 May 1976. CDDH/I/SR.56, 12 May 1976, para. 20. CDDH/I/SR.57, 13 May 1976, para. 32.

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for nominating members and the short period in office provided in the Pakistani proposal were criticised as well. The supporters of the concept of a permanent commission could be distinguished in two radically different groups. The first, mainly Western, group believed that to overcome the proven ineffectiveness of the existing machinery for the enforcement of humanitarian law, the establishment of an independent, neutral, permanent commission was absolutely necessary. While such a commission could help bring individual perpetrators to justice, its very existence also might deter the recurrence of violations and thus prevent the downward spiral that leads to reprisals. This was an important point, since a strong trend of opinion at the CDDH favoured the inclusion in Protocol I of a specific ban on reprisals against the civilian population and civilian objects in non-occupied enemy territory (this in addition to the existing bans on reprisals against all those who are specifically protected by the Geneva Conventions of 1949). The other class of proponents were found among the Arab and allied countries. While their arguments often might have a distinctly rhetorical ring, their goal was dead simple and plainly political: they sought to create an additional, independent forum for the public hearing of their complaints of violation by Israel of its obligations under the Geneva Conventions, notably the part of the Fourth Convention relating to occupied territory. The opponents to the very idea of a permanent commission (the “refuseniks”, so to speak) were found mainly in the then Soviet bloc and among developing countries. Their objections were predictably expressed in terms of sovereignty, non-intervention, rejection of supranational bodies, and emphasis on the need to respect the prohibition of aggression instead of attempting to impose especially on the defendant party the obligation to submit to some sort of supervision by an alien body. At the same time, some delegates of the latter group went out of their way to comment on specific features of the various proposals, thus betraying an interest, not in the proposals as they stood but in the possible creation of some sort of additional body that might contribute to the promotion of respect for humanitarian law. A perfect specimen of this line of thinking was Professor Bernhard Graefrath, member of the delegation of the German Democratic Republic. Opening his argument with the contention that in the prevailing international situation, it seemed best to entrust the Security Council with the task of inquiring into breaches of the Conventions, he added that his country anyhow was unable to accept the two proposals under discussion. Thus having done his duty, he went on to offer, under colour of “additional grounds for criticizing the proposals”, a series of detailed comments: a fact-finding commission should have no right of initiative, nor power to inquire into each and every conceivable rule applicable in armed conflicts; the consent of all parties concerned was required; 12

CDDH/I/SR.56-58, 12-14 May 1976.

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there should be no reporting to the depositary, nor public reporting (in view of the risk of distortion by the media, “given the political opinions held by most of them”); and finally, once again and heavily underlined: the need for consent of all parties. In sum, the one thing that the debate at this third session of the CDDH had made abundantly clear was that while all was not lost, a great deal remained to be done before any sort of fact-finding commission could see the light. And it was for the fourth session to finish the job. 2.3

Fourth Session: Working Group of Committee I

Taking the matter up again at the final, 1977 session of the CDDH, Committee I immediately decided to transfer draft Article 79bis to a working group. Discussions in the corridors had continued in the meantime. As a result, the working group found itself not with two but three draft texts on its table: revised versions of the Pakistani and four-power proposals (in the latter case, with Austria and Japan as additional sponsors); and, as a newcomer, a draft text by the United States of America. The gap between the two revised 1976 drafts had narrowed in that both texts now made provision for a fifteen-member commission nominated for a period of five years. Then, while the Pakistani draft text maintained its strong emphasis on enforcement and resolution of disagreements between the parties, the six-power proposal (as it now was) included besides the “principal function” of inquiring into alleged violations, an additional function (requiring the request of both parties) to “lend its good offices with a view to facilitating repression or prevention of breaches of the Conventions or of the present Protocol.” Other significant issues concerned the nomination of members for the commission (by regional groups of contracting States in the Pakistani draft, by the ICRC in the six-power proposal) and reporting (confidential in the former against public in the latter). As may be noted from the text quoted in the previous paragraph, the sixpower draft now also incorporated the Japanese notion of prevention, though formulated in the softer tones of “good offices”. At the same time, the idea of a right of initiative had been abandoned. The American draft text was an entirely different affair and, indeed, a demonstration of that State’s misgivings with regard to the very notion of a permanent fact-finding body. Instead of a commission, the draft provided for a “permanent International Enquiry Secretariat”, appointed under procedures determined by the ICRC (which, needless to say, would “in no way be responsible for the enquiries undertaken or the findings which emerge from them”). A party to a conflict could request the secretariat “to constitute a Commission to enquire into 13

CDDH/I/GT/105, 15 April 1977, CDDH/I/GT/108, 19 April 1977, and CDDH/I/ GT/110, 21 April 1977.

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any alleged violation of the Conventions or the present Protocol.” If so requested, it would be for the secretariat to select by lot seventeen States Parties each of which would then have to nominate a member of the commission; but both the accusing and accused parties to the conflict could object to nominated members, to a maximum of five each. The remaining nominees would constitute the commission. (The figures mentioned in the proposal were mere suggestions, it being left to the working group to decide on other ones). Obviously, rather than a permanent commission, the proposal envisaged a procedure serving to facilitate the setting up of ad hoc commissions, and a very cumbersome procedure at that, more like an obstacle course. Yet, no matter how negative in outlook, the proposal started out from the assumption that the procedure would be mandatory in character, in that one party could set it in motion and the other simply had to follow. In the working group, the most divisive issue at this stage remained precisely this principle of compulsory (or mandatory) competence; a principle regarded by some as indispensable if not sacrosanct, by others as unacceptable. Eventually, the latter delegations “in a spirit of compromise” (a phrase used ever more frequently as the CDDH drew to a close) showed themselves prepared to accept a solution whereby the competence of the commission would be optional, i.e., dependent on express consent of the parties concerned. The delegation of the German Democratic Republic formally introduced this proposal in an amendment to paragraph 2 of the six-power draft. Differences of opinion also persisted over other matters: composition, functions, finance, etc. Papers were introduced in rapid succession: mergers of previous ones, and amendments thereto. In the end, the working group combined all the different views and proposals into a single, heavily square-bracketed text. Having done that, it handed the whole business back to Committee I, leaving it to that body to remove the square brackets, i.e., to reach consensus or decide by vote on the inclusion or exclusion of bracketed bits of text. 2.4

Fourth Ssession: Committee I

Paragraph 1, on the title, establishment and composition of the commission, encountered few difficulties. Its (expressly noncommittal) title would be International Fact-Finding Commission. It would consist of fifteen members elected for five years from candidates proposed by States Parties to the Protocol,

14 15

CDDH/I/GT/117, 3 May 1977. CDDH/I/GT/119 (corrected), included as para. 30 in the report of Working Group B to Committee I, CDDH/I/349/Rev. 1, 13 May 1977. The report subsequently became annex 11 to the report of Committee I on its work during the 4th session of the Conference, CDDH/405/Rev. 1.

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and a first election was to be held as soon as the Article had become applicable among twenty States Parties to Protocol I. Paragraph 2 dealt with the functions of the commission. One version implicitly accorded it compulsory powers and defined its tasks more or less as proposed in the earlier six-power draft, including the “good offices” function to facilitate “repression or prevention of breaches and to restore an attitude of respect for the Conventions and this Protocol.” The other version, different from the six-power version in many important respects (and from top to bottom in square brackets), was the one introduced by the German Democratic Republic. It gave the commission competence to inquire into alleged violations referred to it, not by one party but by “the Parties to the conflict”, i.e., requiring the consent of all parties concerned. It introduced the optional-clause system by enabling States Parties to accept beforehand the competence of the commission in relation to States that had done likewise. And, in defining the second part of the commission’s functions as “to facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol”, it left out the element of “repression or prevention of breaches”. As may be noted, this text reflected almost literally the views expounded at the third session by Bernhard Graefrath. The time had come for a vote; but on what: on the first or the second version? An ostensibly procedural debate on this issue showed that by this time the representatives of the Arab group had become almost completely isolated in their tenacious adherence to the first version. The second was explicitly supported, obviously, by its proponent, the German Democratic Republic; and less obviously but interestingly, by France and the United States of America (in the latter case, on the argument that “it was the furthest removed from the original” – and, plausibly, more to its liking). On the Chairman’s ruling (who probably had become convinced that it was the wiser course to follow) a vote was taken on the second, bracketed version, and this was adopted by 41 votes to 30, with 11 abstentions. The vote implied that the commission would be denied the compulsory competence the block of Arab delegations and a number of their Western colleagues had striven so hard to achieve. While the optional clause in paragraph 2(b) exceptionally enabled States Parties to Protocol I which so desired to give prior recognition to the commission’s competence in relation to other States Parties that did the same, the principle as expressed in paragraph 2(a) was that the commis16

CDDH/I/SR.72, paras 37, 46. There was some displeasure at the way the vote had been handled. The Holy See gave as one of its reasons for abstention that it thus had “wished to show its disapproval on the conditions in which the vote took place.” Much more cuttingly, Syria declared the Article as adopted “null and void” because of the Chairman’s “personal decision” to give priority to the American proposal, “at the expense of an earlier proposal.”

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sion would be able to exert its functions only with the consent of all the parties to a conflict. Note that the vote also implied the final blow to the Japanese suggestion to accord the commission an active role in the prevention of serious violations of the law. As for the remaining paragraphs 3-7, none of the square brackets reflected issues as critically important as the ones discussed above. I pass them over in silence and invite the reader to listen instead to some of the voices that could be heard immediately after the decisive vote of 13 May 1977. There were, first, those delegations who more or less eloquently expressed dismay at the outcome of the negotiating process and their resultant decision not to vote for Article 79bis. Thus, Canada explained that it had supported the idea of a commission with mandatory powers; “When, however, it became clear that the Commission would only operate on an optional basis, the Canadian delegation had doubts as to its practical value and therefore abstained.” Compare this fairly moderate statement to the cutting remarks of the Egyptian delegation: they considered “the article as it emerged as much ado about nothing: another verbal exercise in evading the real issues and obstacles which have caused the present relative ineffectiveness of humanitarian law and which provided the raison d’être of this whole Conference”; reason why they had “considered it more honest and forthright to vote against the text of Article 79bis in the truncated version which finally prevailed.” Or Ivory Coast: “Is a commission being created for the sake of having a commission?” At the other end of the spectrum we find France: this delegation was content with the outcome, for one thing, because the text did not provide for a compulsory system of enquiry, and for another, because the commission had not been given “the character of a jurisdictional or political body”. Clearly, the French delegation was as positive about the vote as it was negative about the prospect of a new commission. In between these two extremes, a number of delegations regretted that a compulsory system had not been accepted but believed that the commission could nonetheless become a useful tool. To that effect: Austria, Belgium (arguing that the commission “provided a judiciously balanced set of procedures and functions”), Denmark (“taking into account the advantage of the existence prior to any dispute of a certain machinery, however imperfect”), Japan (in spite of its regret at the non-acceptance of “repression or prevention”, and on the argument that establishment of the commission “would constitute a modest and, it hopes, practical step towards full observance of international humanitarian law”), Yugoslavia (making the point that “at the present stage in the development of international law” a mandatory competence of the commission, even if adopted

17

CDDH/I/SR73, 16 May 1977.

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by a majority, was doomed to “remain a dead letter” if “a considerable number of States” would reject the new rule). No great expectations nor high hopes, therefore; but certainly no general feelings of despair either: the prevailing attitude in Committee I could best be characterized as a willingness to give the commission the benefit of the doubt. But of course, there still was the final round of discussions and decision-making in the Plenary Meeting. This took place just a fortnight after the vote of 13 May 1977. 2.5

Fourth Session: Plenary Meeting

Several amendments awaited the Plenary Meeting when it began its consideration of Article 79bis. Two are of interest here: one, sponsored by 21 non-aligned countries and the other, by the United States of America. The non-aligned text aimed to add to paragraph 2(a) a sentence specifying that in a situation of occupation, the request of the Party whose territory is occupied would suffice to get an enquiry started. The amendment drew favourable comments even outside the circle of the sponsors, if only because it at least partially reintroduced the principle of compulsory competence. However, precisely this effect was the bane of the proposal: as explained by several sympathizers, it purported to create an exception to the long fought-over compromise solution accepted in Committee I. Apart from this, the amendment was an obvious attempt on the part of the Arab countries to regain the ground lost in the earlier rounds of debate on Article 79bis, in their continuous struggle against Israel. A roll-call vote brought the decision: with 54 votes in favour, 28 against and 14 abstentions, the amendment had failed to obtain the two-thirds majority required at that stage of the proceedings and was therefore rejected. The American amendment proposed a modification, inter alia, of the election procedure provided in paragraph 1. In the version adopted by Committee I, the first election would be held as soon as twenty States had become party to the Protocol. The amendment proposed to require instead that twenty States Parties had expressed their recognition of the commission’s competence as provided in paragraph 2(b). This sounded more logical than it was: after all, according to paragraph 1, also States that did not make the optional declaration could avail themselves of the services of the commission. Be this as it may, the proposal had been well prepared in the corridors, and it was adopted by 49 votes to 2, with 34 abstentions. The vote drew a bitter comment from the Head of the Swiss delegation, Ambassador Rudolf Bindschedler: its effect would be, “in practice, of prevent18 19 20

CDDH/SR.45, 30 May 1977. CDDH/415/Add. 1 and 2, 25 May 1977. CDDH/416, 25 May 1977.

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ing the Fact-Finding Commission from being set up for another twenty years.” He was just a bit too pessimistic: counting from the date of entry into force of Protocol I, 7 December 1978, it would be another twelve years before the Canadian declaration of acceptance, dated 20 November 1990, finally enabled the Swiss authorities to start organizing the first elections for the Commission. On 31 May 1977, the Plenary Meeting of the CDDH finally adopted Article 79bis by 49 votes to 21, with 15 abstentions. In terms of conference diplomacy, the vote represented a comfortable majority. Yet from a practical point of view, it showed that the International Fact-Finding Commission was a long way from having gained universal acceptance. A round of explanations of vote concluded the debate in the Plenary Meeting on this item of the agenda. Because of its particular interest, I single out just one of these voices: the Canadian delegation had changed its position from abstention to a vote in favour, explaining that it had taken “some satisfaction from the fact that by way of an ‘optional clause’ the Commission is able to operate on a mandatory basis in relation to those States which wish to proceed by this avenue.” As mentioned above, Canada in 1990 would become the twentieth State to make the declaration under Article 90, thereby not merely demonstrating its “wish to proceed by this avenue” but enabling the effective establishment of the Commission. 3

Appraisal

On 25 June 1991, on the invitation of the Swiss Federal Department of Foreign Affairs, representatives of the twenty States that had recognized the competence of the Commission convened at Bern to elect its fifteen members. With the subsequent initial meeting of the elected members on 12 March 1992 the International Fact-Finding Commission had become a body of flesh and blood, something completely different than the paper organ it had been thus far. 21

22 23 24

Only nine of these can be attributed to real postponement, given that the number of 20 ratifications of Protocol I was reached on 15 January 1982, with the ratification by the Republic of Korea; this always under the assumption that this number also would have been reached by that date if Article 90 had made provision for a commission with compulsory competence. CDDH/SR.46. CDDH/SR.46, 31 May 1977. The members came from the following countries: Algeria (Prof. Ghalib Djilali), Austria (Dr. Erich Kussbach), Belgium (Dr. André Andries), Canada (Dr. James M. Simpson), Denmark (Prof. Francis Zachariae), Finland (Prof. Allan Rosas), Italy (Prof. Luigi Condorelli), the Netherlands (Prof. Frits Kalshoven), New Zealand (Prof. Kenneth J. Keith), Norway (Prof. Torkel Opsahl), the Soviet Union (Dr. Valeri S. Kniasev), Spain (Dr. Santiago Torres Bemardez), Sweden (Dr. Carl-Ivar Skarsted), Switzerland (Prof. Marcel Dubouloz), Uruguay (Prof. Daniel H. Martins).

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In the period that followed, the Commission set to work: it wrote its Rules of Procedure, discussed various scenarios for future activities and established working relations with the ICRC and other institutions such as UN organs both in New York and Geneva. Through visits and addresses by its President, Dr. Erich Kussbach, and several of its members it strove to make itself better known. So as to accentuate where the focus of its work should lie, it renamed itself International Humanitarian Fact-Finding Commission. And it produced a brochure (available from the Secretariat, which is operated by the Swiss Federal Department) with information about its existence, competence, rules of procedure, and finance. Then, perhaps most important, the members examined in depth the many at first sight unclear aspects of the Commission’s mandate. Article 90(2)(c) provides that it shall be competent to: 1.

2.

enquire into any facts alleged to be a grave breach as defined in the Conventions and this Protocol or other serious violation of the Conventions or of this Protocol; facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol.

What, indeed, was the purport of this mandate: did the two sub-paragraphs represent two discrete spheres of competence, or was the second just a rider to the first? Should an enquiry focus mainly on bringing perpetrators to justice or rather on the defusing of a situation that otherwise might get out of hand? What consequences should be drawn from the incessant repetition of “the Conventions and this Protocol”: were other areas of humanitarian law excluded from its competence? Specifically, what about internal armed conflict: after all, while there was a dearth of international armed conflicts (to which the Conventions and Protocol I apply in full), instances of the internal variety were abundantly at hand – and often were the scene of abominable violations of the most basic precepts of humanitarian law. So, could the IHFFC regard those conflicts as falling within its competence too? Without going into the details of our discussions (which the members are bound to keep confidential anyway) the following answers to these questions may be given here. In our view, the two prongs of the Commission’s mandate (repression of specific violations, and restoration of general respect for the law) are both equally important and, depending on the case in hand, one or the other may prevail. The one thing the IHFFC cannot do is simply sit as a watchdog, waiting for violations of humanitarian law to occur (a purely monitoring function, in other words). On the other hand, an activity based on (a pattern of ) alleged violations but aiming first and foremost at restoring confidence among the parties that henceforth humanitarian law basically will be respected, would be within our capacities.

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The use of the phrase “humanitarian law” instead of “the Conventions and Protocol I” in the previous paragraph already indicates that the Commission does not take a narrow view of its competence. While it likely might shy away from a request to investigate an allegedly unlawful use of nuclear weapons (taking into account that even the International Court of Justice failed to give a firm answer to the crux of the question in its recent Advisory Opinion on the subject), alleged violations of the fundamental rules on protection of the civilian population against the effects of hostilities doubtless would be regarded as well within its domain. Rules of humanitarian law apply in internal armed conflicts, too. Although Article 90 by referring to “this Protocol” on the face of it does not include Protocol II applicable in such situations, the Conventions of 1949 contain a common Article 3 which lays down a set of basic principles that parties to internal armed conflicts are bound to respect in all circumstances. Hence, even under the terms of Article 90 there is ground for the argument that the IHFFC can lend a hand in those situations of armed conflict as well. Apart from this textual argument, another point is that nothing in Article 90 expressly forbids the Commission from taking on cases arising in such an internal armed conflict. That being so, it would simply fail in its duties if it refused to entertain a complaint by one party alleging violation by another party, for instance, of basic principles for the protection of the civilian population from the effects of hostilities. In a situation of internal armed conflict, the system of prior optional acceptance of the Commission’s competence does not apply. Any activity of the IHFFC in such conflicts therefore remains dependent on ad hoc consent of the parties involved. As the limited experience obtained so far shows, this represents a significant stumbling block: endeavours by (members of ) the Commission to convince parties to an internal armed conflict that they could usefully grant it a role in sorting out their problems of a humanitarian order, although not completely fruitless, have not yet resulted in specific requests for an enquiry. The same, for that matter, goes for international armed conflicts. To the extent that the wars in the former Yugoslavia could be so classified, and in spite of the declarations by successive parties to those conflicts accepting the Commission’s competence pursuant to Article 90, even tenacious prodding by the ICRC and others could not induce these parties to submit any allegations of encroachment of humanitarian law to the IHFFC. This while the occurrence of such encroachments never was a matter of doubt. Would all this have been different had Article 90 provided for compulsory competence, let alone for a right of initiative of the IHFFC? The only answer to such a question, of course, is: we do not know. It is not difficult, though, to indi25

Legality of the Threat or Use of Nuclear Weapons (Request for Advisory Opinion by the General Assembly of the United Nations), Advisory Opinion of 8 July 1996; at the time of writing the Opinion had not yet been officially published.

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cate a variety of factors that might have been in the way of a positive answer in a number of cases. The blackest scenario is where the precepts of humanitarian law are flouted by, and on the orders of, the highest level of decision-makers (i.e., where the criminality is structural): those leaders will not hesitate to disregard an obligation to cooperate with the Commission as well. Or alternatively, supposing they admit the Commission’s representatives to their territory, they may simply fail to give effect to any of its recommendations. A case in point, though not involving the IHFFC but the UN, is the 1980-1988 war between Iran and Iraq: while repeated visits by a committee of experts, despatched by the Secretary-General to verify allegations of use of chemical weapons, each time resulted in the finding that such weapons actually had been used, the ensuing condemnations and exhortations by the Security Council remained completely without effect and the incriminated use went on unabated. Probably more common will be cases where either the alleged perpetrator or the accuser does not wish the truth brought to light. For instance, the allegedly injured party may consciously be using unfounded allegations of wrongdoing for propaganda purposes, or by way of disinformation. Or, the accused party may not wish to be exposed as the party responsible for a given violation, perhaps to evade the financial consequences, or for internal political reasons. And these few examples may be completed with other conceivable scenarios. The greatest positive effect of compulsory powers probably might be expected in a situation of incidental (alleged) encroachments of the law on a level well below the top, and with the authorities at the top being principally inclined to respect their obligations under international humanitarian law. But then, it seems not unlikely that in such a situation the authorities may be persuaded to enrol the assistance of the IHFFC anyway. In practice, therefore, effective performance of the Commission’s functions will depend first and foremost on the actual, ad hoc, willingness of the parties concerned to have allegations of mal-conduct examined and their relations durante belli restored on a basis of respect for humanitarian law. It is this willingness, based on considerations of sheer civilization that the IHFFC must continue to fight for. At the moment of writing, new elections for the next five-year period have just been held (and the present author has been re-elected to the Commission). Will the new team have any more clearly positive results? First of all, I hope that fewer situations will arise where the IHFFC could be of service: peace, even in its negative connotation of absence of major resort to arms, is to be preferred over war, be it inter-State or civil. Yet so long as the recurrence of armed conflict 26

See, by this author: “Prohibitions or Restrictions on the Use of Methods and Means of Warfare”, in H.H.G. Post & I.F. Dekker (eds.), The Gulf War of 1980-1988: The Iran-Iraq War in International Legal Perspective (1992) p. 112.

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cannot be excluded, the IHFFC will go on making propaganda for itself, for its broad competence, for its willingness to help parties to armed conflicts find ways to reduce the human misery such conflicts unavoidably entail.

Chapter 36 Reprisals and the Protection of Civilians: Two Recent Decisions of the Yugoslavia Tribunal*

1

Introduction

The term “reprisal” is in common use to indicate an act that is done in retaliation or revenge. Drug barons may be murdered “in reprisal” for earlier killings on their side, and witnesses to criminal activity may not wish to testify out of “fear of reprisal”. On the loftier plane of international affairs, the term is often used to mark inter-state conduct, again in common parlance as a synonym for retaliation or revenge. However, on this plane it has acquired a legal connotation as well, indicating a claimed justification of unlawful acts in response to equally unlawful acts of another party. What sets this employment of the term apart from its day-today use is that, to be justified as a “reprisal”, an act must meet a series of stringent conditions. Apart from the obvious requirement of previous unlawful conduct by the other party, these conditions may be summed up as: a distinct purpose (to induce the other party to discontinue the unlawful conduct); timely warning; subsidiarity (the measure must be a last resort); proportionality (the measure brings no more serious injury than the injury inflicted by the other party); and termination as soon as the conduct occasioning the measure has come to a stop. Needless to say, the mere claim that a certain measure constitutes a legitimate reprisal provides no guarantee that it actually deserves that qualification. As with any other legal argument, this one too is apt to be misused, in an attempt to justify conduct that, on scrutiny, meets none of the essential conditions for a legitimate reprisal. In the law of armed conflict in particular, the notion of “belligerent reprisal” has developed over the course of time into an often used, and even more often misused, device to check the conduct of an adverse party that violates given rules of that body of law. Occasionally it has been applied with great precision and efficacy. In other cases, reprisals, once resorted to, ran out of hand, disregarding the condition of proportionality and thus giving rise to counter-reprisals. The effect in such cases was a spiral of violence in contravention of the law and causing great

*

Published earlier in L.C. Vohrah et al. (eds.), Man’s Inhumanity to Man (2003) pp. 481-510.

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harm to victims on either side, who may have no connection with the original wrong. This is the reason why, in 1949, prohibitions on recourse to reprisals were included in the four Geneva Conventions for the protection of war victims. In 1977, provisions banning reprisals against civilians and civilian objects were included in Protocol I additional to the Geneva Conventions of 1949 and applicable in international armed conflicts, in the framework of the general protection of civilian populations against the effects of hostilities. Protocol II, concluded at the same time and applicable in non-international (or internal) armed conflicts, contains no such provision. Subsequent bans on reprisals, once again largely designed for the better protection of civilian populations against the effects of hostilities, are found in the 1980 Mines Protocol and the 1996 Amended Mines Protocol, attached to the Conventional Weapons Convention of 1980. The last-mentioned Protocol, in contrast with the original Mines Protocol, is applicable both in international and internal armed conflicts (Art. 1(2)). The prohibitions in Protocol I on reprisals against the civilian population and civilian objects are of interest because of the strong differences of opinion and intense debate that preceded their adoption, the uncertainty how, once adopted, they would fare in actual practice, and the silence on the subject of reprisals in Protocol II on internal armed conflicts. In this light, it should be welcomed that 1

2

3 4

5

6 7

For a fuller discussion of reprisals in the context of armed conflict, including concrete instances of claimed reprisals and the prohibitions introduced in treaties concluded in the Interbellum and after the Second World War, see F. Kalshoven, Belligerent Reprisals (1971). Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I); text in A. Roberts & R. Guelff, Documents on the Laws of War, 3rd ed. (2000) (hereinafter Documents), p. 419. The relevant provisions are Articles 51(6), 52(1), 53 (c), 54(4), 55(2) and 56(4). Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II); Documents, p. 483. 1980 UN Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Documents, p. 513; Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (1980 Protocol II) Art. 3(2); Amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (1996 Amended Protocol II) Art. 3(7). Article 2(3) provides that in the latter situation, “each party to the conflict shall be bound to apply the prohibitions and restrictions of this Protocol.” For earlier writings by this author on the prohibitions of reprisals in Protocol I and the absence of such prohibitions in Protocol II, see: “Reprisals in the CDDH”, in R.J. Akkerman et al. (eds.), Declarations on Principles – A Quest for Universal Peace (1977) pp. 195-216; “Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: The Diplomatic Conference, Geneva, 1974-

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the International Criminal Tribunal for the Former Yugoslavia (ICTY) has twice found an opportunity to express its views on the subject. The cases are, in chronological order, the Decision of Trial Chamber I of 8 March 1996 in a “Rule 61 procedure” concerning Milan Martić, and the Judgement of Trial Chamber II of 14 January 2000 in the case of The Prosecutor v. Zoran Kupreškić et al. The purpose of this paper is to subject the views of these Trial Chambers on the question of reprisals in the context of the rules for the protection of the civilian population, to a critical analysis. Other aspects of the cases will be dealt with in summary fashion. It should be stated at the outset that careful scrutiny of the relevant parts of the above texts has left me with a feeling of dissatisfaction at what the Chambers had to say about the issue, and, indeed, at the fact that they took the matter up at all. 2 The Martić Rule 61 Decision The case against Milan Martić concerns attacks carried out on 2 and 3 May 1995 by the army of the self-proclaimed Republic of Serbian Krajina (or RSK, a Serb-held part of Croatia) against Zagreb, the capital of Croatia. The weapons used were Orkan rockets fitted with cluster-bomb warheads, and they caused death and injury to civilians in Zagreb. The attacks were ordered by Martić, the president of RSK, as the indictment specifies, “in retaliation” to a massive attack launched on 1 May 1995 by the Croatian armed forces against the Serb positions. Prior to that date, an UNPROFOR-controlled cease-fire had long characterised the situation in the area. Increasingly clear indications that Croatia was preparing for the recapture of the Serb-held parts of its territory had induced General Milan Celeketic, commander of the RSK army, to announce on 24 March 1995 that “[in] case of Ustasha aggression, we will certainly not miss the opportunity to hit them where it hurts the most… Weak points are city squares and we know who goes there – civilians.”

8

9 10

1977”, 9 NYIL (1978) pp. 107-171, at pp. 113-115; “Belligerent Reprisals Revisited”, 21 NYIL (1990) pp. 43-80. Prosecutor v. Martić, Case No. IT-95-11-I, Decision, 8 Mar. 1996 (“Martić Rule 61 Decision”) before Judges Jorda (presiding), Odio Benito and Riad. A Rule 61 procedure concerns the reconfirmation by a full Trial Chamber of the earlier decision by one of its members to confirm the indictment against a named accused. Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-T, Judgement, 4 Jan. 2000 (“Kupreškić”), before Judges Cassese (presiding), May and Mumba. Information about the case is derived from the Indictment of 24 July 1995 and the transcript of the public hearing of 27 Feb. 1996, both available on the ICTY website, and from the Decision of Trial Chamber I in the Rule 61 procedure (not on the web). UNPROFOR was the United Nations Protection Force deployed in various parts of the territory of the former Yugoslavia. General Celeketic took his orders from the president as commander-in-chief of the RSK armed forces. “Ustasha” is a denigrating term by which Serbs tend to indicate Croats. Whether quotations in the text are

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Evidently, when the rockets were fired at Zagreb, this put the set policy into effect. The attacks caused considerable harm: 7 dead, over 100 seriously wounded and another 100 or more lightly wounded, all of them civilians. On the material side, many vehicles and buildings were damaged and windows broken. None of the harm was done to anyone or anything military. The attacks were, therefore, indubitably, both in intent and effect, attacks against the civilian population. Martić was indicted on 24 July 1995, a mere three months after the fact, for violations of Articles 3 and 7 of the ICTY Statute. Judge Jorda confirmed the indictment on 25 July 1995 and when that failed to bring the accused to The Hague, by decision of 13 February 1996 ordered the Prosecutor to request a Rule 61 review of the indictment. Part of that procedure was a public hearing held on 27 February 1996. On that occasion, the Prosecution gave an overview of the case, presented evidence additional to that already in the confirmation file, and set forth the arguments on which they believed Martić was rightly indicted. By its Decision of 8 March 1996, Trial Chamber I unanimously reconfirmed the

11

12

from the Decision or from the transcript of the public hearing may be clear from the context. Art. 3 gives the International Tribunal power to prosecute “persons violating the laws or customs of war”; Art. 7(1-3) defines various forms of individual criminal responsibility of persons not the actual perpetrator. At the time, Art. 61 (Procedure in Case of Failure to Execute a Warrant) provided in relevant part: (A) If, within a reasonable time, a warrant of arrest has not been executed … the Judge who confirmed the indictment shall invite the Prosecutor to report on the measures taken. When the Judge is satisfied that: (i) the Prosecutor has taken all reasonable steps to secure the arrest of the accused … the Judge shall order that the indictment be submitted by the Prosecutor to his Trial Chamber. (B) Upon obtaining such an order the Prosecutor shall submit the indictment to the Trial Chamber in open court, together with all the evidence that was before the Judge who initially confirmed the indictment. The Prosecutor may also call before the Trial Chamber and examine any witness whose statement has been submitted to the confirming Judge. (C) If the Trial Chamber is satisfied on that evidence, together with such additional evidence as the Prosecutor may tender, that there are reasonable grounds for believing that the accused has committed all or any of the crimes charged in the indictment, it shall so determine … (D) The Trial Chamber shall also issue an international arrest warrant in respect of the accused which shall be transmitted to all States. (E) If the Prosecutor satisfies the Trial Chamber that the failure to effect personal service was due in whole or in part to a failure or refusal of a State to cooperate with the Tribunal … the Trial Chamber shall so certify. After consulting the Presiding Judges of the Chambers, the President [of the International Tribunal] shall notify the Security Council thereof in such manner as he thinks fit. Doc. IT/32/Rev. 7

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indictment, and accordingly issued an international arrest warrant against the accused. The Decision is in three parts: (I) Introduction, (II) Review of the indictment, and (III) Disposition. In the Introduction, the Trial Chamber notes that, to arrive at its conclusion, it not only needs to “establish that there are reasonable grounds for believing that the accused has committed one or all of the crimes charged in the indictment” but “must also review the legal characterisation of the facts presented by the Prosecutor in order to determine whether its competence at this stage has been established.” In Part II, after a brief description of the charges against Martić, it reverses the order, discussing first the legal aspects of the competence of the International Tribunal under Article 3 of the Statute, and only after that taking a closer look at the facts. The conclusion of the Trial Chamber follows in Part III (Disposition), where it finds “that there are reasonable grounds for believing that Milan Martić has committed the crimes charged in the indictment confirmed on 25 July 1995.” The chosen order, with “the legal aspects of the competence of the International Tribunal under Article 3 of the Statute” preceding the facts, lends the discussion of the legal aspects a wholly theoretical character. The question the Trial Chamber poses itself is not whether the International Tribunal is competent to deal with the attack on the civilian population in Zagreb, but a more general review of attacks on civilians in any situation of armed conflict. The discussion starts out with a reference to the (then quite recent) Decision of the Appeals Chamber in the Tadić case, where that Chamber held that Article 3 “refers to a broad category of offences, namely all ‘violations of the laws or customs of war’” and that “the enumeration of some of these violations provided in Article 3 are merely illustrative, not exhaustive.” Since conduct of the type charged by the Prosecutor is not literally reflected in any of the “illustrations” included in that article, the Trial Chamber “must verify that it constitutes a violation of the laws or customs of war referred to in the Article.” It must also be satisfied that the conditions set by the Appeals Chamber for establishing the jurisdiction of the Tribunal under Article 3 “appear to have been fulfilled at this stage.” The Trial Chamber accordingly sets out to “identify those conventional 13 14

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Supra note 8. Martić Rule 61 Decision, para. 5, citing Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct. 1995, Case No. IT-94-1AR72 (hereinafter: Tadić Decision, or Tadić), para. 87. Out of the five violations specifically mentioned in Art. 3, two are at least relevant to the case in hand: “wanton destruction of cities, towns or villages, or devastation not justified by military necessity”, and “attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings.” The conditions the Appeals Chamber set in Tadić, para. 94, are: “(i) the violation must constitute an infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature or, if it belongs to treaty law, the required condi-

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and customary norms which underlie the charges against Milan Martić and establish that violations of these rules are subject to prosecution under Article 3 of the Statute.” Identification of applicable rules yields a rich harvest. As treaty provisions, Articles 51(2, 6) and 85(3)(a) of Protocol I and 13(2) of Protocol II, are applicable in international and internal armed conflicts respectively (with both Protocols binding “[all] the States which were part of the former Yugoslavia and parties to the present conflict at the time the alleged offences were committed”). As a norm of customary law: “the rule that the civilian population as such, as well as individual civilians, shall not be the object of attack, [as] a fundamental rule of international humanitarian law” which like other similar rules (and as confirmed in two resolutions of the UN General Assembly) is “applicable to all armed conflicts irrespective of their characterisation as international or non-international armed conflicts.” All this is stated to be reinforced by the Martens clause (stating that “in cases not covered by [the relevant instruments] civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity, and from the dictates of the public conscience”) and by “elementary considerations of

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tions must be met… (iii) the violation must be ‘serious’, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim… (iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.” Protocol I, Art. 51(2): “The civilian population as such, as well as individual civilians, shall not be the subject of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.” Article 51(6): “Attacks against the civilian population or civilians by way of reprisals are prohibited.” Art. 85(3)(a) qualifies as a grave breach, the act of “making the civilian population or individual civilians the object of attack”, when “committed wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health.” Protocol II, Art. 13(2) is identical to Art. 51(2) of Protocol I. The GA resolutions are: res. 2444 (XXIII), 19 Dec. 1968, affirming res. XXVIII of the XXth International Conference of the Red Cross, 1965, which laid down as one of the “principles for observance by all governmental and other authorities responsible for action in armed conflicts” that “it is prohibited to launch attacks against the civilian populations as such”; and res. 2675 (XXV), 9 Dec. 1970, listing among the “basic principles for the protection of civilian populations in armed conflicts” that “Civilian populations should not be the object of military operations” and “Civilian populations, or individual members thereof, should not be the object of reprisals, forcible transfers or other assaults on their integrity.” The Martens clause stems from the preamble to the 1899 Hague Convention II Respecting the Laws and Customs of War on Land, and was reiterated without change in the 1907 version of that Convention; Documents, 70. The text quoted above is as in Art. 1(2) of Protocol I. The preamble of Protocol II recalls in shorter and less “legal” terms that “in cases not covered by the law in force, the human person

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humanity.” According to the Trial Chamber, the latter “are reflected in Article 3 Common to the Geneva Conventions” which “embodies those rules of customary international law which should be observed ‘as a minimum’ by all parties ‘at any time and in any place whatsoever’ irrespective of the characterisation of the conflict.” From this it concludes (in my view, wrongly): The prohibition to attack civilians must be derived from Common Article 3 which provides that “persons taking no active part in hostilities … shall, in all circumstances, be treated humanely” and which prohibits, in paragraph 1(a), “violence to life and person, in particular, murder of all kinds, mutilation…” Attacks against the civilian population as such or individual civilians would necessarily lead to an infringement of the mandatory minimum norms applicable to all armed conflicts.

This leaves the question of the nature of acts such as the Serb counter-attacks. As specified in the indictment, Martić gave his orders “in retaliation” to the Croat attack launched on 1 May 1995; and indeed, as noted above, General Milan Celeketic had threatened as early as 24 March 1995 that such an attack would lead to counter-attacks against the Croat civilian population. Should it be assumed that attacks of the type as carried out against Zagreb might be “legitimate reprisals” in the sense of international humanitarian law? This question is broached, first and at length, by Mr. Eric Ostberg, a senior trial attorney of the Office of the Prosecutor. He submits that reprisals against the civilian population are generally prohibited, “whether in international or internal armed conflicts”; or alternatively, “to the extent that such reprisals may not be prohibited, they constitute an exception to the general rule of humanitarian

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remains under the protection of the principles of humanity and the dictates of the public conscience.” See also: A. Cassese, “The Martens Clause: Half a Leaf or Simply Pie in the Sky?”, 12 European Journal of International Law (2000) pp. 187-216; on its historical origin (exposing it as a compromise formula dictated from Brussels to Martens as Head of the Russian delegation to the 1899 Hague Peace Conference), see: R. Coolsaet, ‘La Belgique et la première Conférence de la Paix de La Haye (1899)’, on CD-ROM (under 1899B.PDF) in the back of F. Kalshoven (ed.), The Centennial of the First International Peace Conference (2000). The “elementary considerations” formula stems from the Judgement of the International Court of Justice in the Corfu Channel case, where it speaks of “certain general and well recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war” (ICJ Reports, 1949, p. 22). The Court quotes its formula in its Judgement in the Nicaragua case (ICJ Reports, 1986, para. 215) and in its Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons (ICJ Reports, 1996, para. 79). This statement is wrong. Art. 3, as part of the Geneva Conventions of 1949, has no bearing on hostilities and the risks military operations pose to civilians. See also infra notes 26 and 27.

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protection and, consequently, their lawfulness is conditioned on the satisfaction of certain very strict criteria.” For the principal thesis, Mr. Ostberg seeks support in General Assembly resolution 2675 on “basic principles for the protection of civilian populations in armed conflicts.” This states inter alia that “civilian populations, or individual members thereof should not be the object of reprisals, forcible transfers, or other assaults on their integrity.” General Assembly resolutions may not generally make law, but the Appeals Chamber in its Tadić Decision had qualified this particular resolution as “declaratory of the principles of customary international law regarding the protection of civilian populations and property in armed conflicts of any kind.” As regards the fact that neither Article 4 nor Article 13(2) of Protocol II refer to reprisals, Mr. Ostberg (mistakenly) refers to comments by the International Committee of the Red Cross (ICRC) in relation to Article 4, to the effect that the silence in that article is due to “reasons of a legal and political nature” and that, given the absolute character of the prohibitions on inhumane treatment in the article, “there is in fact no room left at all for carrying out ‘reprisals’ against protected persons.” While these references are at least textually correct, this is no longer the case when Mr. Ostberg adds that the ICRC “observes that … in the absence of such provisions, reprisals against civilians are ‘implicitly prohibited’.” Unfortunately, the entire quote is wrong. As is clear from the full text in the Commentary, it reflects the views the ICRC had expressed in the past in rela22 23

24

25 26

Supra note 18. Tadić Decision, para. 112; the quoted sentence continues: “and, at the same time, were intended to promote the adoption of treaties on the matter, designed to specify and elaborate upon such principles.” With regard to the issue of reprisals against civilians, that further process has resulted in the adoption of prohibitions of reprisals in Articles 51 et seq. of Protocol I, and in a refusal to say anything about it in Protocol II. Art. 4 (Fundamental guarantees) opens Part II (Humane treatment) of Protocol II; it reaffirms and considerably elaborates upon common Art. 3 of the 1949 Geneva Conventions. ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), paras 4529, 4530. Para. 4530 reads: “The list of prohibited acts [in Art. 4] is fuller than that of common Article 3. That being so, and because of the absolute character of these prohibitions, which apply at all times and in all places, there is in fact no room left for ‘reprisals’ against protected persons. Such an interpretation was already given in the commentary on common Article 3. In the absence of an express reference to ‘reprisals’, the ICRC considered that these were implicitly prohibited.” In its Commentary to the 4th Geneva Convention, the ICRC, noting that Art. 3 does not prohibit reprisals, wonders whether this means “that reprisals, while formally prohibited under Article 33, are allowed in the case of non-international armed con-

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tion to common Article 3, and transposes these to the new Article 4. As noted elsewhere in the Commentary, common Article 3 “does not contain provisions relating to the protection of the civilian population as such.” The comment at Article 4 must similarly be understood to be restricted to the “humane treatment” provisions of that article, and has no bearing on the provisions in Article 13 on general protection of the civilian population against the effects of hostilities or on the issue of reprisals in that context in particular. Having thus established to his (though not to my) satisfaction that reprisal attacks against the civilian population are banned in all types of armed conflict, Mr. Ostberg takes up the alternative point: assuming that reprisals against civilians might not be regarded as prohibited in internal armed conflicts, their lawfulness would always be “subject to strict criteria” since they would “constitute a narrow exception” to the general rule of protection “against inhumane acts and attacks in all circumstances.” Indeed, they deviate so significantly from “the elementary norms of international humanitarian law, that, if serious or deliberate attacks on civilians are established beyond a reasonable doubt, there is a presumption that such action was unlawful in the absence of proof to the contrary.” Upon which he concludes “by saying: the shelling of Zagreb was not a reprisal. It was a terror retaliation and it was unlawful.” The Trial Chamber, continuing its reasoning in abstracto, asks itself whether there might be “circumstances which would exclude unlawfulness, in whole or in part [of an attack on the civilian population in any armed conflict] … does the fact that the attack was carried out as a reprisal reverse the illegality of the attack?” For its (negative) answer it relies, first, on the principle that “[t]he prohibition against attacking the civilian population … must be respected in all circumstances regardless of the behaviour of the other party.” With “the great majority of legal authorities” it “assert[s] that no circumstances would legitimise an attack against civilians even if it were a response proportionate to a similar violation perpetrated by the other party”; language, incidentally, which clearly indicates that the Chamber is thinking here of belligerent reprisals in the legal sense and is aware of the conditions needed to justify such measures. To bolster its argument the Trial Chamber adduces Article 1 common to the 1949 Geneva Conventions, which, it says, obligates contracting States “to respect and to ensure respect for the Conventions, even when the behaviour of the other

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flicts …”, a question it answers in the negative by referring to the absolute and permanent character of the prohibitions in Art. 3. The point is that Art. 33, like the rest of the Convention, applies to those persons who find themselves in the hands of a party to the conflict and does not extend to situations of combat. Ibid., para. 4776. Actually, the text the ICRC relies on for this statement refers to the general notion of protection of the civilian population, in the words of Art. 13(1), against “the dangers arising from military operations.” The argument of the Trial Chamber on the reprisal issue is in paras 15-18 of the Decision.

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party might be considered unlawful.” The closing part of the sentence is not in the text of Article 1 and is an interpretation the Chamber places on the article. Nor do the 1949 Geneva Conventions deal with the protection of the civilian population against the effects of hostilities, or a fortiori with the issue of reprisals in that context. Equally irrelevant is therefore its reference to the Judgement of the International Court of Justice in the Nicaragua case, where it holds that the obligation of the United States to respect and to ensure respect for the Conventions “derives not only from the Conventions themselves, but also from the general principles of humanitarian law to which the Conventions merely give specific expression”: this holding too applies only to the Conventions. Like Mr. Ostberg, the Trial Chamber seeks further support in General Assembly resolution 2675, with its suggestion that “civilian populations, or individual members thereof, should not be the object of reprisals.” The resolution, adopted in December 1970 at an early stage of the discussions about “reaffirmation and development of international humanitarian law”, gives expression to a widely shared feeling at the time that such a prohibition ought to be achieved. As we know, this is what was done in 1977 with the adoption of Article 51(6) of Protocol I. As we also know, Protocol II does not contain a similar clause. In that respect, the Trial Chamber argues that “a prohibition against such reprisals [against the civilian population in internal armed conflict] must be inferred from its Article 4.” On that article, I may refer to what I wrote earlier on Mr. Ostberg’s use of the same argument. My conclusion that Article 4 of Protocol II is irrelevant to the matter of reprisals against the civilian population in a situation of internal armed conflict is not altered by the reference in the Decision of the Trial Chamber to the prohibition of “collective punishments” in Article 4(2)(b). With the rest of that article, this specific clause belongs to the realm of Geneva-style “humane treatment”, not to that of the Hague-style protection of civilian populations “against the dangers arising from military operations.”

29

30 31 32 33

Common Art. 1 reads as follows: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” On the drafting history and interpretation of this article see F. Kalshoven, “The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit”, 2 YIHL (1999) pp. 3-61. ICJ Reports 1986, para. 220. Supra note 18. Supra text at notes 24-26. The reference to “collective punishments” introduces into Protocol II a notion that was already embedded in Art. 33 of the Fourth (or Civilians) Geneva Convention of 1949: “No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.”

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The Trial Chamber concludes that: the rule which states that reprisals against the civilian population as such, or individual civilians, are prohibited in all circumstances, even when confronted by wrongful behaviour of the other party, is an integral part of customary international law and must be respected in all armed conflicts.

In my submission, these conclusions are unsubstantiated. The Trial Chamber has not convincingly shown that reprisals against the civilian population are banned as a matter of customary international law, nor that the treaty prohibition of reprisals against the civilian population applies outside international armed conflicts. As a last legal point, the Trial Chamber establishes that violations of the type discussed meet the criteria for a “serious” violation spelled out by the Appeals Chamber in Tadić (that “the violation must undermine important values and it must have serious consequences for the victim or victims”) and that all other conditions for the competence of the International Tribunal are met. Turning next to the facts of the case, and first, to “the military and political situation prevailing at the time of the attacks on Zagreb in May 1995”, the Chamber holds that “there can be no question that the armed forces of the Republic of Croatia and the armed forces of the self-proclaimed Republic of Serbian Krajina were engaged in an armed conflict.” This formulation seems odd. Taken literally, the “time of the attacks on Zagreb” was 2 and 3 of May, 1995; on those dates, and indeed since the Croatian attack on 1 May, the armed forces of the two parties were doubtless “engaged in an armed conflict”. This does not however appear to be what the Chamber wants to convey. Its reference to the “military and political situation prevailing at the time of the attacks” suggests that in its perception, even before 1 May 1995 there was a situation of armed conflict. Actually, as noted above, the situation that prevailed for several years in the area was an UNPROFOR-monitored cease-fire. Characterising it nonetheless as an armed conflict, the Trial Chamber appears to apply the dictum of the Appeals Chamber in Tadić that: “International humanitarian law … extends beyond the cessation of hostilities until … a peaceful settlement is achieved.” Assuming for the sake of argument that this dictum is correct, the fact of the matter is 34

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Its conclusion is in para. 17; in para. 18, it adds a point that has to do with the indiscriminate character of the Orkan rocket, equipped as it was in the case at issue with a fragmentation-type warhead and used against a location where no military objectives were to be found. As not directly relevant to the reprisal question, I leave this aspect of the case on one side. Supra note 16. Tadić, para. 70. The Appeals Chamber may have had its reasons for this construction in the Tadić case. When applied to the situation of cease-fire in Martić, the incongruous result is

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that, prior to 1 May 1995, the two parties might at most be regarded as politically, rather than militarily, “engaged in an armed conflict”. The Trial Chamber finally notes that the evidence shows that Martić ordered the attacks and that these had been planned and prepared. On the basis of this and all other evidence, it is: satisfied that there are reasonable grounds for believing that on 2 and 3 May 1995, the civilian population of the city of Zagreb was attacked with Orkan rockets on orders from Milan Martić, the then president of the self-proclaimed Republic of Serbian Krajina … the use of the Orkan rocket in this case was not designed to hit military targets but to terrorise the civilians of Zagreb. These attacks are therefore contrary to the rules of customary and conventional international law … and fall within the jurisdiction of the Tribunal … The Chamber therefore is satisfied that there is reason to reconfirm all four counts of the indictment against Milan Martić …

In sum, the Trial Chamber went out of its way to identify every imaginable rule, principle or consideration justifying in its eyes, first, the conclusion that the International Tribunal under Article 3 of its Statute has jurisdiction over attacks against the civilian population, carried out in any type of armed conflict in the territory of the former Yugoslavia in the period since 1991; second, its decision to reconfirm the indictment against Martić. By way of final comment, I note that while the attack launched by Croatia on 1 May 1995 was an unmistakable breach of the cease-fire (and thus, if such a thing exists, a violation of jus ad bellum internum), the facts set forth in the Decision do not warrant the conclusion that it should also be regarded as an unlawful attack on the civilian population in the Serb-held part of Croatia’s territory and, as such, as a violation of jus in bello as well. It remains therefore unclear why the Chamber chose to discuss the matter of reprisals against civilians in internal armed conflicts at all. 3 The Kupreškić Judgement The Judgement of Trial Chamber II in the Kupreškić case is as long as the Martić Decision is short: 340 pages compared with 13. An introduction on procedure (Part I) and a list of the charges against the six accused (Part II) are followed by three substantive parts: Part III describes the general background;

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a prolonged period of “armed conflict” totally devoid of events requiring application of humanitarian law. Supra note 9; the accused are Zoran, Mirjan and Vlatko Kupreškić , Drago Josipović, Dragan Papić and Vladimir Santić. Paras 38-338.

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Part IV sets forth the evidence on the role of each of the accused, and Part V presents the views of the Chamber on the applicable law. Three short parts conclude the Judgement: Part VI on legal findings, Part VII on sentencing, and the Disposition in Part VIII. At the centre of the case stands an attack carried out on 16 April 1993 by Bosnian Croats on the Muslim population in the village Ahmići, located on the route between Busovača and Vitez, in the Lašva River Valley in central Bosnia. The attack had been preceded by a period of rising “tensions and animosity” between the ethnic Croat and Muslim parts of the population in the region, in the course of which “relations between the two groups worsened and each group increasingly engaged in a policy of discrimination against the other.” After examining the evidence relating to discrimination and persecution on either side, the Trial Chamber chooses to leave unanswered “[w]hether the Croats pursued this policy in a more fierce and ruthless way and on a larger scale.” To the extent that the policy was carried out by the armed forces of both parties, its findings leave no doubt that the Croatian forces (the HVO) were the stronger. In the organised, vicious attack on Ahmići, numerous Muslims of all ages and both male and female, were savagely murdered, raped and tortured. The Trial Chamber specifically finds that the attack “was aimed at civilians for the purpose of ‘ethnic cleansing’.” The six defendants, all of them Bosnian Croats from Ahmići and members of the HVO, stood trial for their part in the preparation and execution of the 40 41 42 43

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Paras 339-509. Paras 510-748. Para. 125. Ibid. The Trial Chamber supports this decision with the argument that “the fact that the adversary engages in unlawful behaviour and persecutes or kills civilians cannot be a justification for similar or reciprocal conduct.” The point is expounded more fully in the Chamber’s discussion (and rejection) of the tu quoque argument; infra para. 20. The armed forces in the area were a mixture of regular and paramilitary forces, with the forces of the Croatian Defence Council (or HVO) being “better armed and equipped, and … able to set up more checkpoints than the [mostly irregular] Bosnian Territorial Defence” (para. 146). “Indisputably, what happened on 16 April 1993 in Ahmići has gone down in history as comprising one of the most vicious illustrations of man’s inhumanity to man” (para. 755). Para. 338; the sentence that follows the quoted phrase shows once again how close the reprisal issue was to the Judges’ minds: “Whether the forced expulsion of Muslims from Ahmići was motivated by the strategic purpose of removing a Muslim pocket as [sic] the route between Busovača and Vitez, or was instead conceived of as a retaliation against the attacks by Muslim armed forces on Kuber and a few predominantly or exclusively Croatian villages of the area is a question that the Trial Chamber may leave unresolved for the purposes of this case.”

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attack on the Muslims in Ahmići. Particularly shocking is the realisation that, in many instances, they had known the victims all their lives. The Trial Chamber obviously was obliged to establish in minute detail the facts about each defendant’s part in the events. For the purposes of this paper, there is no such need to go into the individual cases. Suffice it to mention that while none of the accused were found guilty of the “violations of the laws or customs of war” (Statute, Art. 3) charged against them, all but one of them were found guilty of “crimes against humanity” (Art. 5) and were sentenced to terms ranging from 6 to 25 years’ imprisonment. The lack of geographical distance and the close links between the accused and their victims are but one feature that sets the Kupreškić case apart from the Martić case. Other differences are the status of the accused (ordinary villagers vs. the president of a self-proclaimed republic) and the type of crime (crimes against humanity vs. violation of the laws or customs of war). Then, Martić was a Rule 61 case with a one-day hearing, and Kupreškić, a procedure that lasted more than four years and in the course of which the Trial Chamber heard a total of 156 witnesses over 111 days. The only features the two cases appear to have in common are, first, that they focus on events of short duration: two days for the attack on Zagreb, one day for the attack on Ahmići; second, that the attacks in either case were directed against the civilian population; and third, the suggestion that an aspect of retaliation, or reprisal, might be involved. The Trial Chamber broaches the matters of reciprocity and reprisal in the context of the protection of civilians in a comparatively short section on “preliminary issues” that opens Part V on the applicable law. It is followed by long sections on “crimes against humanity”, “persecution as a crime against humanity”, and “the question of cumulation of offences (concursus delictorum).” Interesting though the latter sections may be, they belong to the realm of international criminal law and are therefore left out of consideration here. With that, the “preliminary issues” of the first section is the only remaining part of the Kupreškić case to be discussed in this paper. They are threefold: (1) the inapplicability of the tu quoque principle; (2) the sacrosanct character of the obligation to respect and protect civilians; and (3) the limited importance of precedent. Little need be said about the first issue. Noting that defence counsel had “indirectly or implicitly relied upon the tu quoque principle, i.e., the argument whereby the fact that the adversary has also committed similar crimes offers a valid defence to the individuals accused”, the Trial Chamber categorically rejects 47 48 49 50

Part VIII (Disposition). Paras 29, 32-37. A good deal of the testimony consists of sheer horror stories, which cannot have failed to leave an indelible impression on the Judges’ minds. Paras 510-542. Respectively, sections B (paras 543-566), C (paras 567-636) and D (paras 637-748).

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the argument, on two grounds. The first ground is that the argument was universally rejected already at the time of the war crimes trials following the end of the Second World War and finds “in fact no support either in State practice or in the opinions of publicists.” The second is that the argument is “flawed in principle.” Humanitarian law generally speaking is not based on reciprocity, and “individual criminal responsibility for serious violations of that law may not be thwarted by recourse to arguments such as reciprocity.” The Trial Chamber next brings up the subject of the “protection of civilians in time of armed conflict, whether international or national”, as “the bedrock of modern international humanitarian law.” This “bedrock” is elaborated into two principles: the prohibition against targeting the civilian population as the object of attack; and the obligation in the course of military operations to spare the civilian population as much as possible. With regard to the first principle, the Trial Chamber identifies as “a universally recognised principle, recently restated by the International Court of Justice”, a rule that “deliberate attacks on civilians or civilian objects are absolutely prohibited by international humanitarian law.” With respect to the second principle, the Trial Chamber posits that “international law contains a general principle prescribing that reasonable care must be taken … so that civilians are not needlessly injured through carelessness.” While

51 52

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Para. 516. Para. 517 (see also supra note 43). Elaborating the latter point, the Chamber sets forth its views on “the progressive trend towards the so-called ‘humanisation’ of international legal obligations, which refers to the erosion of the role of reciprocity in the application of humanitarian law over the last century”; the increasing awareness that international humanitarian law is “primarily designed to benefit individuals qua human beings” and compliance therefore cannot be made dependent on reciprocity; the erga omnes character of the norms of humanitarian law, which “lay down obligations towards the international community as a whole;” and the fact that “most norms of international humanitarian law, in particular those prohibiting war crimes, crimes against humanity and genocide, are also peremptory norms of international law or jus cogens;” paras 518-520. Para. 521. The actual statement of the Court is that given the distinction between combatants and civilians, “States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets”; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, para. 78. The Court discusses neither reprisals nor internal armed conflict, and in effect admits its incapacity to “reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake” (para. 97). Note that Protocol II contains no general prohibition to attack civilian objects, and indeed specifies no distinction between those objects and military objectives. Judgement, para. 524.

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this seems a surprisingly minimalist reading of the principle, the Trial Chamber next goes to the other extreme, asserting that the principle of reasonable care “has always been applied in conjunction with the principle of proportionality, whereby any incidental (and unintentional) damage to civilians must not be out of proportion to the direct military advantage gained by the military attack”; a controversial statement to which it correctly adds that the principles so defined “have to some extent been spelled out in Articles 57 and 58 of the First Additional Protocol of 1977.” In actual fact, the term “proportionality” does not figure in Protocol I, because it was held to be too much of a mathematical formula and therefore to be unsuitable as a test of combatant behaviour. Instead, the text refers to damage that “would be excessive in relation to the concrete and direct military advantage anticipated” (Article 57(2)(a)(iii)). And, it may be repeated once again, Protocol II contains no comparable provision. The phrase “to some extent”, emphasised by me in the quotation above, conveys a sense of dissatisfaction, as does the remark in a following sentence that Articles 57 and 58 “leave a wide margin of discretion to belligerents by using language that might be regarded as leaving the last word to the attacking party.” But not to worry: here the International Court of Justice’s “elementary considerations of humanity” come to help; these “should be fully used when interpreting and applying loose international rules, on the basis that they are illustrative of a general principle of international law.” It is surprising, to say the least, to find the provisions of Article 57 referred to as “loose international rules.” Actually, the rules are the outcome of long and intense negotiations between the diplomats, officers, lawyers and medical doctors who, representing the large number of States that participated at the Diplomatic Conference of 1974-1977, drafted the 1977 Protocols. The result of this painstaking 55

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The UN General Assembly already in 1968 set a considerably more exacting general standard when it identified as the purpose behind the distinction between combatants and civilians “that the latter be spared as much as possible”; GA res. 2444 (XXIII), 19 Dec. 1968, supra note 18. Similarly, Art. 57(1) of Protocol I of 1977 provides that “In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.” Judgement, para. 524. Art. 57 (Precautions in attack) is the first of two articles composing Chapter IV (Precautionary Measures) of Section I (General Protection against Effects of Hostilities) of Part IV (Civilian Population) of Protocol I. Art. 58 deals with “Precautions against the effects of attacks”. It is simply incorrect to state that the principle of “no needless damage to civilians” has “always been applied in conjunction with the principle of proportionality”: the actual conduct of belligerents often shows a marked lack of respect for either principle. Ibid. It is difficult to see how Art. 58 might “leave the last word to the attacking party”, given that its provisions set forth precautions to be taken “against the effects of attacks”. Ibid.

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process is a set of detailed rules tying the hands of an attacker as tightly as was found militarily acceptable. “Loose rules” indeed! The Trial Chamber, adding insult to injury, goes on to suggest that here, “recourse might be had to the celebrated Martens Clause.” According to its terms and drafting history, this venerable clause is designed to help out in situations where negotiating parties ultimately failed to resolve an outstanding issue. This does not keep the Chamber from utilising the clause as one more device to correct what it apparently regards as a deficient rule of treaty law. In terms evidently meant to highlight the virtues of the clause, it asserts that it: enjoins, as a minimum, reference to [the principles of humanity and the dictates of the public conscience] any time a rule of international humanitarian law is not sufficiently rigorous or precise: in those instances the rule must be defined with reference to those principles and dictates. In the case under discussion, this would entail that the prescriptions of Articles 57 and 58 (and of the corresponding customary rules) must be interpreted so as to construe as narrowly as possible the discretionary power to attack belligerents and, by the same token, so as to expand the protection accorded to civilians.

Noting in passing that the Trial Chamber now also uses the Martens Clause as a corrective device for (apparently equally loose) rules of customary law, my main point of criticism concerns its fundamental misconception of the character of Article 57 on “precautions in attack”. It may be repeated that the article places a series of detailed, stringent restrictions on parties planning, deciding, launching and carrying out an attack that may entail risks for the civilian population. Yet, they are rules of warfare, not of charity. Any interpretation one would wish to place on the rules that would effectively preclude the conduct of normal military operations is bound to remain a dead letter. Perhaps even more striking than what the Trial Chamber writes is the very fact that it discusses the protection of the civilian population against the side effects of attacks on military objectives. The Kupreškić case concerns a wanton attack on Muslim civilians in a village devoid of military objectives. The death and injury inflicted upon the victims was the opposite of collateral damage: it was purely intentional. While some of the accused were charged with “violations of the laws or customs of war” (of which they were found not guilty) these charges never included excessive harm to civilians in the course of an attack on military objectives. The frontal attack of the Trial Chamber on the “loose” rules of 59 60 61 62

Para. 525 Supra note 19. Para. 525. Art. 57(2) is divided into a number of paragraphs dealing with each of the categories mentioned in the text.

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Articles 57 and 58 of Protocol I is therefore completely out of place. It also betrays a regrettable lack of understanding of the function of those articles in the context of the general protection of civilian populations against the effects of hostilities. This part of the Judgement is not merely obiter dictum but should be disregarded as male dictum. Continuing its argument about the protection of the civilian population, the Trial Chamber discusses at some length the issue of reprisals against civilians. It begins by stating that Article 51(6) of Protocol I prohibits reprisals against civilians “in combat zones.” Surprise again: the article does not contain such a restriction and prohibits “attacks against the civilian population or civilians by way of reprisals” no matter where they are found. The restriction is especially inappropriate in the context of Kupreškić, where the attack on the Muslims clearly did not take place in a zone of combat between opposing armed forces: the Trial Chamber itself, towards the end of its Judgement, “is satisfied, on the evidence before it in this case, that [the attack] was not a combat operation.” And, another point of note, the Chamber does not mention here, nor anywhere else in its discussion of the reprisal issue, that Protocol II on internal armed conflicts is silent on the matter. Rather, the Trial Chamber embarks on an investigation of whether the treaty provision of Article 51(6), together with that in Article 52(1) outlawing reprisals against civilian objects, has perhaps “been transformed into general rules of international law.” The Chamber notes that there may be a lack of usus. Here, however, Martens shows up as a deus ex machina: “the way States and courts have implemented” the Martens Clause indicates that we have here an area “where opinio iuris sive necessitatis may play a much greater role than usus”, and “principles of humanitarian law may emerge through a customary process under the pressure of the demands of humanity or the dictates of public conscience, even where State practice is scant or inconsistent.” Indeed, “opinio necessitatis, crystallising as a result of the imperatives of humanity or public conscience, may turn out to be the decisive element heralding the emergence of a general rule or principle of humanitarian law.” And, lo and behold: this is exactly what has happened with reprisals against civilians. These are “inherently barbarous” and are “not directed specifically at the individual authors of the initial violation” but instead at “vulnerable individuals or groups” who “may not even have any degree of solidarity with the pre63 64

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Judgement, paras. 527-536. Actually, the whole notion of “combat zone” does not figure in the Protocol. Closest comes Art. 15(2) where, in the context of protection of civilian medical and religious personnel, it is provided that “If needed, all available help shall be afforded to civilian medical personnel in an area where civilian medical services are disrupted by reason of combat activity” (italics supplied). Judgement, para. 749.

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sumed authors of the initial violation; they may share with them only the links of nationality and allegiance to the same rulers.” All true, as with all belligerent reprisals. Somewhat less satisfactory is the next step in the Trial Chamber’s line of reasoning: “the reprisal killing of innocent persons … without any requirement of guilt or any form of trial” amounts to “a blatant infringement of the most fundamental principles of human rights.” As a result of “a slow but profound transformation of humanitarian law under the pervasive influence of human rights … belligerent reprisals against civilians and fundamental rights of human beings are absolutely inconsistent legal concepts.” This may be so, but it is begging the question. After all, reprisals are meant to be infringements of the law, and unless they can be shown to have been prohibited, the only question is whether they can be justified in the circumstances. Even more tenuous is the final part of the argument, according to which reprisals are no longer necessary since another “means of inducing compliance with international law” has become available “and, more importantly, is beginning to prove fairly efficacious: the prosecution and punishment of war crimes and crimes against humanity by national or international courts.” While this statement leaves one wondering how a Trial Chamber of the International Tribunal can submit that the instrument of “prosecution and punishment … is beginning to prove fairly efficacious”, even more surprising is its next sentence, where it states that this means serves not only to bring the perpetrators to justice but, also, “albeit to a limited extent, the purpose of deterring at least the most blatant violations of international humanitarian law.” I do not know on what information the Chamber founds this statement. As far as I am aware, there has been no recent decline in the incidence of blatant violations of international humanitarian law. Entirely satisfied by the evidence it has adduced, the Trial Chamber concludes that “due to the pressure exerted by the requirements of humanity and the dictates of public conscience, a customary rule of international law has emerged on the matter under discussion.” This matter, it may be recalled, was the prohibition of reprisals against civilians “in combat situations”, and the purpose of the exercise was to find out whether the treaty obligation of Protocol I – which is applicable in international armed conflicts – has been transformed into a general or customary rule. The Trial Chamber has convinced itself that this is indeed the case. Yet, several questions remain. One is whether this presumed general rule binds States that expressly or implicitly have rejected it. Another question, and a much more important one, is 66 67 68 69

Para. 528. Para. 529. Para. 530. Para. 531.

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whether it should also be deemed to apply in situations of internal armed conflict – for which, as noted repeatedly in the foregoing, no rule comparable to Articles 51(6) and 52(1) of Protocol I, has been included in Protocol II. The matter of dissident States is touched upon twice by the Chamber. The first occasion is in a footnote to its argument that a high number of States meanwhile have ratified Protocol I “thereby showing that they take the view that reprisals against civilians must always be prohibited” (so that opinio iuris sive necessitatis “can be said to exist”). Leaving on one side the fact that the Chamber here optimistically disregards the inclination of States to accept a treaty obligation as part of a package and with a mental reservation, it does refer in a footnote to the express reservation made in 1998 by the United Kingdom on the occasion of its ratification of Protocol I. This spells out in clearest possible terms the strict legal conditions under which that country, in the face of “serious and deliberate attacks” by an adverse party on civilians or civilian objects, “will regard itself as entitled to take measures otherwise prohibited” by Articles 51-55. And the Chamber fails altogether to refer to the statement that Italy in 1986 attached to its ratification, specifying that it “will react to serious and systematic violations by an enemy of the obligations imposed by Additional Protocol I and in particular its Articles 51 and 52 with all means admissible under international law in order to prevent any further violation.” Although less explicit than the British reservation, its purport is exactly the same. The second occasion occurs in the framework of the Chamber’s argument that “in the numerous international or internal armed conflicts which have taken place in the last fifty years”, participating States “have normally refrained from claiming that they had a right to visit reprisals upon enemy civilians in the combat area.” The argument sounds rather strange in relation to the, indeed “numerous” internal armed conflicts of that period, most of them of the “common Article 3” type, and with the States involved for obvious reasons not claiming a right to take reprisals against “enemy” (i.e., their own) civilians in a “combat area” (if such an area could be identified within their own territory). As for the rare cases of international armed conflict of the period, the Chamber correctly notes that a claim of reprisal has been made by Iraq in its 1980-1988 war with Iran. Neither State, incidentally, was party to Protocol I; 70 71 72 73 74

Para. 532, note 787. For the full text of the reservation, see Documents, p. 511. Documents, p. 507. Judgement, para. 533. The Chamber in paragraph 533 refers to an ICRC memorandum of 7 May 1983 to the States parties to the 1949 Geneva Conventions on the Iraq-Iran war, which states in part that systematic attacks on civilians and civilian objects “are inadmissible, the more so that some were declared to be reprisals before being perpetrated.” Ironically, warning is one of the preconditions that could have turned the Iraqi attacks into a legitimate reprisal.

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and it seems unlikely that the prohibitions on reprisals against civilians in the Protocol could already have acquired a status as customary or general law at the time; so, the example of Iraq claiming a right of reprisal may not even count. This leaves only the “hypothetical” claims made “by a few States, such as France in 1974 [which voted against the prohibitions on reprisals] and the United Kingdom in 1998”, and of these, only the British precedent counts (together with the once again omitted Italian statement). However, even if Iraq has remained the only State after 1977 to claim a right of reprisal against the enemy civilian population in the handful of international armed conflicts that actually occurred in that period, and even though only the United Kingdom and, plausibly, Italy, have, to date, reserved a right to take recourse to such reprisals in the hypothetical case of their becoming involved in such a conflict, this does not mean that other States will not take recourse to such measures without having reserved a right to do so. The conclusion of the Chamber that all of the above “supports the contention that the demands of humanity and the dictates of public conscience, as manifested in opinio necessitatis, have by now brought about the formation of a customary rule also binding upon those few States that at some stage did not intend to exclude the abstract legal possibility of resorting to the reprisals under discussion” may therefore be founded on quicksand. As for the more important issue of reprisals against civilians in internal armed conflict, apart from noting that States participating in such conflicts “have normally refrained from claiming” a right to take reprisals against their own civilians, the Trial Chamber circumvents the problem posed by the silence of Protocol II by just not referring to it. Instead, it relies on a statement made by the International Law Commission in its 1995 Report on State responsibility, where it notes that common Article 3 of the 1949 Conventions “prohibits any reprisals in non-international armed conflicts with respect to the expressly prohibited acts as well as any other reprisal incompatible with the absolute requirement of humane treatment.” 75

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At the Diplomatic Conference, France frantically and ultimately in vain attempted to find agreement on a formula that would specify the conditions for a legitimate recourse to reprisals against an enemy civilian population. France, it may be noted, is not yet a party to Protocol I. Except for para. 536, where the Chamber notes that in Kupreškić, “the treaty provisions prohibiting [reprisals against civilians] were in any event applicable” because in 1993, both Croatia and Bosnia-Herzegovina were party to Protocols I and II, so that “whether or not the armed conflict of which the attack on Ahmići formed part is regarded as internal, indisputably the parties to the conflict were bound by the relevant treaty provisions prohibiting reprisals.” It would have been worthwhile for the Chamber to look up Protocol II and note that it contains no such provision. Yearbook of the International Law Commission, 1995, vol. II, Part Two, A/CN4/SER. A/1995/Add.1 (Part 2) (State responsibility), para. 18, 72.

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Obviously, common Article 3 does not contain a textual prohibition of reprisals; yet, it arguably excludes reprisals against the persons it protects by virtue of the “all circumstances” clause. This category does not however include civilians in “combat zones” (as the Chamber prefers to style what Protocol I refers to as “effects of hostilities”, and Protocol II, Article 13(1), as “the dangers arising from military operations”): as with the rest of the 1949 Conventions, common Article 3 does not govern the conduct of hostilities. The conclusion the Chamber draws from the Commission’s opinion, that “reprisals against civilians in the combat zone are also prohibited” is therefore unfounded, and completely disregards the fact that a quarter-century after 1949, all attempts to include a prohibition on reprisals into Protocol II, in the provisions protecting the civilian population from the dangers of actual combat, failed miserably. The Trial Chamber sets out at length how and why reprisals against the civilian population are prohibited, both as treaty law, not only in international armed conflicts but in internal armed conflicts as well, and as a sort of “necessary” general international law in any armed conflict. Thus, it comes as a surprise that, as its next step, it sees a need to point out that reprisals, “even when considered lawful”, are restricted by a number of principles: last resort, warning, high-level decision, proportionality, termination when goal is achieved; and, the Chamber adds: “elementary considerations of humanity” – the condition which, as noted before, has from the outset remained controversial. In any event, one may consider even that condition satisfied if, as in the United Kingdom reservation, reprisals will only be considered “if an adverse party makes serious and deliberate attacks … against the civilian population or civilian objects” and if, apart from other conditions, they “will not involve any action prohibited by the Geneva Conventions of 1949.” In sum, none of the arguments advanced by the Trial Chamber have succeeded in convincing me that the prohibition of reprisals against the civilian population has acquired any greater force than as treaty law under Protocol I, or that it extends, whether as conventional or customary law, to internal armed conflicts as well. Furthermore, as with the obiter discussion by the Chamber of the rules in Protocol I on precautions to be taken in attacking military objectives, the discussion of the reprisal issue may also be regarded as out of order, or at best, as being based on the flimsy excuse of the “indirect or implicit reliance” by the Defence on 78 79

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Supra note 21. The Trial Chamber adds that common Art. 3 “has by now become customary international law” and, as “rightly held” by the International Court of Justice in Nicaragua, “encapsulates fundamental standards of overarching value applicable both in international and internal armed conflicts” (para. 534); whatever one may think of these statements, they are in any rate irrelevant, given the inapplicability of Art. 3 to the issue of reprisals against the civilian population. Para. 535.

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tu quoque mentioned earlier. As far as the Judgement shows, the Defence had not turned its reference to similar acts committed by Muslims to Croats into a claim that the acts of the accused constituted justifiable reprisals. Given the frequent criticism in the above of the views developed by the Trial Chamber on the issues of protection of the civilian population and reprisals, it appears opportune to complete the discussion of its Judgement in the Kupreškić case with an overview of the third and final point dealt with by the Chamber in its chapter on preliminary issues, i.e., “the importance the International Tribunal can attach to case law in its findings of law.” Evidently, the findings of the Trial Chamber on this issue may be relevant to other (international or national) courts or bodies that wish to know how much store they can set by the Judgements of the International Tribunal, and the Kupreškić Judgement in particular. The Trial Chamber takes up the issue of the value and binding force of precedent because its Judgement “is largely based on international and national judicial decisions.” Asking itself whether the International Tribunal is “an international court proper”, it bases its affirmative answer on “the intent of the Security Council”, the “structure and functioning” of the International Tribunal, and the fact that “it is called upon to apply international law.” Indeed, that body of law is “the normative corpus to be applied by the International Tribunal principaliter.” National law may enter the picture, either “to fill possible lacunae in the Statute or in customary international law”, or “incidenter tantum”, when the applicability of a given rule of international law can only be determined by reference to domestic law. 81

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Supra, para. 41. In Part VI (Legal findings) under D (para. 765), the Trial Chamber once again returns to the question: “As pointed out above in the section on the applicable law, in international law there is no justification for attacks on civilians carried out either by virtue of the tu quoque principle … or on the strength of the principle of reprisals. Hence the accused cannot rely on the fact that allegedly there were also atrocities committed by Muslims against Croatian civilians.” But did they? Para. 537. This reliance is most marked in the next chapters on applicable law, where the Chamber extensively discusses the state of the law with respect to crimes against humanity, persecution as a crime against humanity, and the question of cumulation of offences. Para. 539; as an instance of this incidental jurisdiction, the Chamber mentions the situation where the point at issue is whether someone is a “protected person” under the Fourth Geneva Convention of 1949: “To this end [the International Tribunal ] may have to satisfy itself that the person possessed the nationality of a State other than the enemy belligerent or Occupying Power. Clearly, this enquiry may only be carried out on the basis of the relevant national law of the person concerned.” The example reminds us of the Tadić case, where the opinion of Trial Chamber II that the victims could not be said to have been “in the hands of a party to the conflict of which they were not nationals” (Prosecutor v. Duško Tadić, Case No. IT-941-T, Opinion and Judgement, 7 May 1997, para. 608) was reversed by the Appeals Chamber: the victims had well and truly “found themselves in the hands of armed forces of a State [the Federal Republic of Yugoslavia] of which they were not nation-

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“Being international in nature and applying international law principaliter”, the next question for the International Tribunal is what sources of international law it can rely upon; and specifically, what is the status of judicial decisions? Article 38(1)(d) of the Statute of the International Court of Justice qualifies these as merely “subsidiary means for the determination of rules of law.” Hence, apart from “the binding force of decisions of its own Appeals Chamber upon the Trial Chambers, the International Tribunal cannot uphold the doctrine of binding precedent (stare decisis)”, be they precedents established by the Nuremberg or Tokyo Tribunals or by national courts. The Trial Chamber continues: Similarly, the Tribunal cannot rely on a set of cases, let alone on a single precedent, as sufficient to establish a principle of law: the authority of precedents (auctoritas rerum similiter judicatarum) can only consist in evincing the possible existence of an international rule. More specifically, precedents may constitute evidence of a customary rule in that they are indicative of opinio iuris sive necessiatis and international practice on a certain matter, or else they may be indicative of the emergence of a general principle of international law. Alternatively, precedents may bear persuasive authority concerning the existence of a rule or principle, i.e. they may persuade the Tribunal that the decision taken on a prior occasion propounded the correct interpretation of existing law. Plainly, in this case prior judicial decisions may persuade the court that they took the correct approach, but they do not compel this conclusion by the sheer force of their precedential weight. Thus, it can be said that the Justinian maxim whereby courts must adjudicate on the strength of the law, not of cases (non exemplis, sed legibus iudicandum est) also applies to the Tribunal as to other international criminal courts.

This lengthy quotation finds its justification in the importance of the principle it sets forth. The “Justinian maxim”, in effect, applies not only to the International Tribunal taking cognisance of what other (international and domestic) courts have done, but with equal force to the outside world noting what the International Tribunal is doing. To that wider public, its judicial decisions, as “subsidiary means for the determination of rules of law”, have no binding force of precedent and may at best have “persuasive authority concerning the existence of a rule or principle, i.e., they may persuade [the public] that [their decisions] propounded the correct interpretation of existing law.” They obviously may also fail to do so.

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als.” It added that “Article 4 of Geneva Convention IV, if interpreted in the light of its object and purpose, is directed to the protection of civilians to the maximum extent possible… In granting its protection, Article 4 intends to look to the substance of relations, not to their legal characterisation as such” (Prosecutor v. Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999, paras 167, 168). Elsewhere in the Judgement, where the Trial Chamber is “delving into [the] new area of international criminal law”, it modestly notes that “its powers in finding the

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Conclusion

It will not come as a surprise that to this author, both the Martić Decision and, even more so, the Kupreškić Judgement fall in the category of judicial decisions that not merely have no binding force of precedent but lack persuasive authority, because they do not “propound the correct interpretation of existing law.” This both on the matter of protection of the civilian population against the effects of hostilities and on that of reprisals against the civilian population. With regard to both issues, I am afraid the judges (and once again, specifically those sitting in Kupreškić cum suis, because they had more time and wrote at greater length) have been guilty of an attempt to rewrite the law. They did this on many points of detail, which I shall not recapitulate here. They did it principaliter, however, by substituting rules of treaty law (which they regarded as unsatisfactory) with certain broad considerations, notably the “elementary considerations of humanity” (once relied upon by the International Court of Justice in a totally different context) and the Martens Clause (a saving device for situations on which States failed to agree on treaty language). This is an impermissible method for a court of justice, which (in the words of Trial Chamber II) “must apply lex lata, i.e., existing law”, notwithstanding its “broad powers in determining such law.” And they did it in relation to points they needed not have discussed at all. As for Martić, the discussion of reprisals, initiated by the Prosecutor, need not have been pursued by Trial Chamber I, not even ex abundante cautela: for its Rule 61 Decision it sufficed to put on record the evidence adduced by the Prosecutor relating to Martić’s responsibility, and the matter of a possible excuse could have been left to the time the defence was actually raised. As for Kupreškić, it is totally incomprehensible why Trial Chamber II saw fit to take up the issue of precautions in attack, as provided for in Article 57 of Protocol I. With respect to the reprisal issue, Trial Chamber II failed in its attempt to demonstrate that such measures against civilians are prohibited as a matter of treaty law not only for international armed conflicts (as they are) but for internal armed conflicts as well. It also failed to mention that Protocol II is purposely silent on the point. Had it acknowledged this point (and therefore dared to identify the conflict in the Kupreškić case as an internal armed conflict) it actually could have developed an argument along the Martens lines. As with the position of resistance fighters in occupied territory, which remained unregulated in 1899 and therefore fell under the Martens Clause, so too the fact that the issue of reprisals against civilians in a situation of internal armed conflict was left unregulated in 1977 may lead to the conclusion that the position of these people falls

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law are of course far more limited than those belonging to the Roman Praetor: under the International Tribunal’s Statute, the Trial Chamber must apply lex lata, i.e., existing law, although it has broad powers in determining such law” (para. 669). Supra note 84.

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specifically under the terms of the fourth preambular paragraph of Protocol II, which recalls that in such cases, “the human person remains under the protection of the principles of humanity and the dictates of the public conscience.” This cannot lead to the conclusion that reprisals against civilians are as much prohibited in an internal armed conflict as they are in an international one (where the prohibition, for that matter, may not be as watertight as might be expected on the face of it). It may, on the other hand, be argued that on top of the categorical prohibition of attacks against civilians, reprisals meeting the conditions therefor as developed in relation to international armed conflict should only be resorted to in the rarest of cases, and then perhaps, as in the United Kingdom reservation, only after the planned action has been notified to a neutral institution like the ICRC. The above suggestion may sound futuristic, if not implausible. The point is that the notion of “reprisals” as a legal device, wielded by parties to an internal armed conflict yet meeting all the conditions therefor, is itself highly implausible and seems conceivable only in a conflict that resembles an international armed conflict in all significant respects – as was briefly the case, for instance, when Croatia launched its attack against the part of its territory temporarily known as the Republic of Serbian Krajina. The situation in the Lašva River Valley in central Bosnia, on the other hand, is a typical example of an internal armed conflict where reprisals as a legal device could never find a place.

Chapter 37 The International Humanitarian Fact-Finding Commission: A Sleeping Beauty?*

On 31 May 1977, just one week before the adoption of the two Protocols Additional to the Geneva Conventions of 1949, the Plenary Meeting of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts adopted a long text on the creation of a new, permanent instrument for the promotion and enforcement of international humanitarian law (or IHL). Included in Protocol I, the text became Article 90, and the instrument was styled the International Fact-Finding Commission. Today, twenty-five years after its creation, there is reason to ask ourselves what has become of the Commission: why do we hear so little about it; has it turned into a “sleeping beauty”? A first comment is that not even at its birth did the Commission qualify as a beauty. At that moment in time, it was nothing but a paper construct: an idea reduced to a string of treaty clauses, not rooted in customary humanitarian law and tainted with several unattractive birth marks reflecting the struggle that had accompanied its creation. At the Conference, in effect, the idea of creating a permanent fact-finding mechanism had been as enthusiastically embraced by some as strongly opposed by others. Since neither side could win, the outcome was the inevitable compromise: a text no-one was entirely happy with but that was not so bad as to preclude consensus. This outcome may be illustrated with the example of two German participants at the Conference. Both had been actively engaged in the debate but each on opposing sides, and at the end of the day both could support the adoption of Article 90, though each with their own misgivings. One was Dr. Dieter Fleck, delegate of the Federal Republic of Germany; the other, Professor Bernhard Graefrath, member of the delegation of the German Democratic Republic. For Dr. Fleck, the baby was less perfect than he had hoped for: the text displayed defects that he had rather not seen. Professor Graefrath’s preference would have * 1

Published earlier in 4 Humanitäres Völkerrecht (2002) pp. 213-216. For an overview of the drafting history of Art. 90, see F. Kalshoven, “The International Humanitarian Fact-finding Commission: its Birth and Early Years”, in E. Denters & N. Schrijvers (eds.), Reflections on International Law from the Low Countries (1998) pp. 201-215.

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been for an abortion; yet, largely owing to his own doings, the end product had become sufficiently neutralised for him to regard it as acceptable. Always in these terms, the battle at the Conference may be described as one between the Fleckians on one side: proponents of a strong commission, with automatic, compulsory jurisdiction and, for some, even a right of initiative – largely, the Western and likeminded countries; and, on the other side, the Graefrathists: opponents of the very idea of an independent fact-finding body – the Soviet bloc, and a good part of the Third World. The outcome was a commission with no right of initiative, with “competence” instead of “jurisdiction”, and not adorned with any automatic or compulsory powers: without exception, its activities would require the consent of all sides involved in a fact-finding situation. Article 90(2)(a) provides States parties to Protocol I with the option to give this consent beforehand, by depositing a declaration recognizing the competence of the Commission in relation to any other State party accepting the same obligation. Twenty such declarations were required before the Commission could even be established. It took a full 14 years, until 1991, for the Commission to travel this distance from “virtual” to “real” existence – a long time, yet six years less than Professor Rudolf Bindschedler, head of the Swiss delegation at the Conference, had originally predicted. Today, the International Humanitarian Fact-Finding Commission (as it has restyled itself ) is in the 11th year of its “real existence”. Its competence has been recognized by 60 States, and these not just minor ones, such as Liechtenstein, Malta, or Trinidad and Tobago. Also major powers have done so: Russia as early as 1989; the United Kingdom, 10 years later. In effect, virtually all European States have made the declaration, with France as notable exception: that State overcame its hesitations to become party to Protocol I as late as 2001, and evidently has not considered the time ripe to accept the competence of the Commission as well. Contrast this with those States that declared their acceptance at times when they were actually engaged in armed conflict: Croatia, 11 May 1992; Bosnia and Herzegovina, 31 December 1992; and Colombia, 17 April 1995. Even so, the Commission has to this day failed to attract actual work, whether from States that had made a prior declaration pursuant to Article 90(2)(a) or from parties which ad hoc decided to engage its services. These services, it should be noted, may be twofold: as provided in Article 90(2)(c), the Commission is competent to “enquire into any facts alleged to be a grave breach as defined in the Conventions and this Protocol or other serious violation of the Conventions or 2

3

See B. Graefrath, “Die Untersuchungskommission im Ergänzungsprotokoll zu den Genfer Abkommen vom 12. 8. 1949”, 1981 Wissenschaftliche Zeitschrift der HumboldtUniversität zu Berlin, Ges.-Sprachw. R. XXX, p 12. Op. cit. note 1, at p. 211. The requirement of 20 acceptances of the Commission’s competence stems from an American amendment – one more country that did not particularly like the idea of an independent commission.

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of this Protocol”, and to “facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol” – the latter clause obviously reminiscent of similar clauses in various human rights treaties. The Commission has attempted to improve its lot along two lines. The first line has involved an internal process, with the members trying to find ways around some of the restrictions embedded in Article 90. Particularly troublesome in this respect are: (1) the fact that Article 90 is included in an instrument, Protocol I, that is specifically applicable in international armed conflicts; and (2) the repeated references in the Article to “the Conventions and this Protocol”. Obviously, international armed conflicts have become a rarity, with the great majority of today’s armed conflicts being of the non-international variety. As well, what we regard today as international humanitarian law is quite a bit broader than the contents of the Geneva Conventions of 1949 and Protocol I of 1977 alone. The Commission accordingly has almost from day one declared itself ready to carry out its functions in situations of internal armed conflict as well. It considers that nothing in the text of Article 90 prevents it from doing so, provided all the parties concerned in a particular enquiry or good offices procedure consent to its functioning. Similarly, it is convinced that whether in a situation of international or internal armed conflict, the scope of applicable law need not be restricted to “the Conventions and this Protocol” and may effectively encompass the entire field of IHL, again, provided the parties concerned accept such an extension. The second line has consisted of a series of promotional activities. Members seized every opportunity to introduce and explain the Commission in academic and similar suitable meetings. The Commission was represented in international Red Cross and other official conferences. Delegations headed by the president visited a number of capitals, meeting with political and military authorities. Visits were brought to the United Nations headquarters and to permanent representatives of States members of the Security Council. These latter visits served, inter alia, to explain the possibility for that organization and for the Security Council in particular, to utilise the Commission for specific enquiries into alleged serious violations of IHL. While these combined efforts may have significantly contributed to the remarkable increase in the number of States that accept the competence of the Commission, its capacities remained untested in practice. Our question, whether the Commission has turned into a “sleeping beauty”, might therefore be answered in this sense that although never a “beauty” in the first place, it certainly continues to be “sleeping”. Why is this so? In effect, a number of factors may be determinant of this unsatisfactory situation. Two are highlighted here: (1) the 4

More than once on those occasions it became apparent that not all of these authorities had a clear idea, to say the least, of IHL and its relations with, and distinctions from, human rights law.

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Commission’s independence, and (2) the reluctance of parties to an armed conflict to have the truth about certain alleged facts exposed. The case of the former Yugoslavia may serve as an example. The break-up of Yugoslavia, in mid-1991, and the outbreak of armed conflicts between the various former parts of that State, coincided with the beginning of the “real existence” of the Commission. Allegations of serious violations of IHL accompanied the conflicts from the very outset. The ICRC time and time again urged the parties to refer their complaints to the Fact-Finding Commission. To the extent the parties reacted at all, each time at least one party chose not to follow that advice. Then, in October 1992, the UN Security Council, rather than mandating the Commission to investigate the facts at issue, requested the Secretary-General to set up a special commission of experts, with the task to collect and analyse all available information about serious violations, and to report its findings to the Secretary-General (and, through him, to the Security Council). Ironically, two of the five members of this ad hoc commission were also members of the FactFinding Commission. As we know, this commission was soon overshadowed by the equally ad hoc International Tribunal for the Former Yugoslavia. The first factor mentioned above, the Commission’s independence, was hailed at the outset as one of its major assets. It had been created on purpose as a treaty body, not organically connected with either of the two dominant networks in this sphere of interest: the Red Cross/Red Crescent Movement, and the United Nations (where initiatives for investigations are frequently launched, whether by the Security Council, the Secretary-General, the High Commissioner for Human Rights, or the Special Rapporteurs). To underscore its complete independence, the Commission initially held its annual meetings in Berne, at the seat of its Secretariat and, more important, far from the Geneva offices of the ICRC and the United Nations! However, as evidenced by the Yugoslavian example, such a blissful state of utter independence acts as a two-edged sword: while protecting the Commission from undue influence (the reason why the construction was chosen in the first place) it also isolates it as a sort of alien body not belonging to one’s proper family.

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The commission was established pursuant to Resolution 780 (UN Doc. S/RES/780 (1992)), with the present author as chairman and as members: Prof. Cherif Bassiouni, Mr. William J. Fenrick, Judge Keba Mbaye and Prof. Torkel Opsahl. Its final report, with Prof. Bassiouni as chairman, was submitted to the Security Council by the Secretary-General on 24 May 1994 (UN Doc. SC Doc. S/1994/674, 27 May 1994). The ICTY was established by Resolution 827 (UN Doc. S/RES/827 (1993)), 25 May 1993. To the Secretary-General, in 1992, the Commission must have appeared like a distinguished yet untested body. In the appointments list of 26 Oct. 1992, the fact is mentioned that I was a member of the Fact-Finding Commission. Yet, the Commission was bypassed.

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The other point, the reluctance of parties to see the truth about alleged facts exposed, is intrinsic in the nature of the Commission’s mandate. For it to enquire into facts alleged to be serious violations of IHL requires that it searches for the truth about these allegations. True, the rules of procedure prescribe that a report of the Commission is sent to the parties and may be disclosed only by those parties. Even so, the outcome may be a finding that one party had lied (or “distorted the truth”). Clearly, this is what parties to armed conflicts do all the time, and they go to great lengths to prevent their schemes being exposed. Parties to the various Yugoslavia conflicts too, have often preferred to use allegations of violations as a propaganda weapon rather than as a first step towards the disclosure of the truth about the alleged facts. In the course of the first ten years of its actual existence, the Commission has more than once been involved in situations that might have led to real work. To mention a few: The Sri Lankan Tamil Tigers once were briefly interested in the possibility of submitting to the Commission, cases of alleged violation of IHL by government forces: they lost interest when they realised that the government might have claims against them as well. The Chechnyan authorities invited the Commission to investigate violations allegedly committed by Russian forces, on the basis, unacceptable to the Commission, that Chechnya was an independent State and the conflict with Russia therefore an international armed conflict, and Chechnya was successor to the Soviet Union as party to the Geneva Conventions and Protocol I as well as in the declaration under Article 90 made in 1981 by the Soviet Union. In the recent conflict in Afghanistan, Amnesty International wrote to the parties concerned (the United States, the United Kingdom, and the Northern Alliance) that they should have the facts that led to numerous deaths among prisoners at Mazar-I-Sharif clarified by the Commission. The parties never even answered to Amnesty’s suggestion. The Commission came closest to actual involvement in Colombia – a hornet’s nest that has been the theatre of vicious internal armed conflict since long years. At one time, after several years of talks with the government and one guerrilla party, the ELN, an agreement between these two parties was in the making. However, elections brought a new president, who set a different course which did not leave room for involvement of the Commission as long as the armed conflict was continuing. Even so, the case of Colombia is illuminating in that it brings to light the importance of trust gradually growing between parties, to the point where they can seriously consider entering into an agreement involving the submission of their mutual accusations of wrongful conduct of hostilities to an independent, neutral body of outsiders. The negotiating parties, it may be added, had 8

On the attitude of Colombia in relation to Protocol II of 1977, and to IHL in general, see, by this author, “Protocol II, the CDDH and Colombia”, in K. Wellens (ed.), International Law: Theory and Practice (1998) pp. 597-622.

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set great store by the good offices capacity of the Commission, considering that its involvement actually might contribute to bringing the parties closer to peace. The question may be asked whether the Fact-Finding Commission is likely to get an actual job any time soon? Any answer to that question would be a matter of speculation. Rather, I wish to add a few more words about the Commission’s potentialities in relation to its function of “finding facts” concerning alleged serious violations of IHL. Consider, first, what may be the purpose of such an exercise? This actually will depend entirely on the specific task the Commission is given: it may be to establish an historical record; to expose the truth; to lay bare the facts pointing to the responsibility of a party; to provide grounds for compensation of victims. Each of these tasks may serve a useful purpose. The Commission may also be called upon to identify the person or persons who prima facie may be regarded as individually criminally liable for a particular act, thus enabling the start of a prosecution that in turn may lead to a trial. In the early debate among members about Article 90, some members held this to be not just one possible role for the Commission but really its only task. It should be emphasised, and it was realised from the outset, that the Commission is not itself a judicial body. The most it could determine is “whether there are reasonable grounds for believing that [a particular person] committed the [serious violation imputed in the request].” I borrow this phrase from a Rule 61 decision taken by ICTY Trial Chamber II in September 1996 in the case of Ivica Rajic, who had been the commander of a Bosnian-Croat unit that attacked and destroyed the village Stupni Do in central Bosnia. The question is: could the Fact-Finding Commission have done what this Chamber of the ICTY did? It may be recalled that at the time of the event (October 1993) both Bosnia and Herzegovina and Croatia had recognised the Commission’s competence! In effect, the Chamber found prima facie evidence of a variety of things: that Rajic had been in command of the Bosnian Croat unit that carried out the attack on Stupni Do; that Bosnian Croats were acting as “agents” of Croatia in such clashes with the Bosnian government; and that at the time, units of the Croatian Army were present in central Bosnia, had been sent there by the Croatian government, and were engaged in fighting against the Bosnian government (so that even Article 2 of the ICTY Statute could apply). In my submission, the Fact-Finding Commission could have done all this. I do not know how many of its present members share this view. At least one 9

10 11 12 13

The Prosecutor v. Ivica Rajic a/k/a/ Viktor Andric, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, Decision of 13 Sept. 1996. Paras. 9, 58-61. Para. 26. Paras. 13-21. Paras. 7, 8.

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member of the first hour has remained convinced that the Commission can do no more than verify the basic “facts” – that a gun was fired and a man fell; not: who instigated or ordered the act, let alone a matter of command responsibility of persons higher up. This may be a last trace of the struggle between the Fleckians and the Graefrathians, with the latter definitely on the losing side. I am not suggesting that a Stupni Do-type fact-finding mission would have been easy – far from it. Indeed, I strongly hope that the Commission’s first case is not of that order of complexity. Nor, for that matter, would Colombia have been my theatre of choice! Cases apt to arise out of the situation in that country might not be of the “whodunit” variety (since the facts would often be plain) but would involve questions of ultimate responsibility. To conclude: the Fact-Finding Commission has not so far had the chance to demonstrate its capabilities. I am convinced that its day will come. I am also convinced that it will then be able to prove itself a useful addition to the list of existing international instruments for the promotion and enforcement of IHL. The instruments on that list are neither numerous nor overly effective. As for the most recent and much-heralded addition, the International Criminal Court, time will tell what it can effectively contribute. To revert to Colombia, that State became a party to the Court’s Statute, and the president used the occasion to warn the guerrillas to mend their ways, or else! Even with this recent addition to our list, there remains room for further expansion, in particular with instruments with a more direct impact on the parties’ level of respect for their IHL obligations than may be expected of any ad hoc or permanent international criminal jurisdiction.

Chapter 38 The International Humanitarian Fact-Finding Commission Established by the First Additional Protocol to the Geneva Conventions*

1

Introduction

The International Fact-Finding Commission is a creature of Article 90 of the Protocol of 8 June 1977 Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I). It was effectively established in 1991 when, as required by Article 90(1)(b), twenty States parties had recognized its competence. In order to emphasise its focus and avoid confusion with fact-finding bodies in other areas of law (such as tax law in certain countries) the Commission has added “humanitarian” to its name. In its publications and correspondence, it consistently refers to itself as the “International Humanitarian Fact-Finding Commission”, or, for short, the IHFFC. To this day, the Commission has not had occasion to deal with any concrete case. Since the procedures set forth in Article 90 and in the Rules adopted by *

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Paper read at expert meeting on individual complaints and international humanitarian law (IHL), University of Amsterdam, Dec. 2004. The various sections are in reply to a questionnaire formulated by the organizers of the meeting, Professors C. Flinterman and André Nollkaemper. Text of Protocol I in A. Roberts & R. Guelff (eds.), Documents on the Laws of War, 3rd ed. (2000) p. 419; also available on the website of the ICRC: http://www.icrc.org. As of 2 Aug. 2006, 69 States parties to Protocol I had recognized the competence of the Commission; the last State to join the group was the Republic of Montenegro. Website of the Commission: http://www.ihffc.org, visited on 12-10-2006. The website provides information about the Commission’s views on various matters discussed in this paper. As provided in Art. 90(2)(c)(i), the Commission is competent to “inquire into any facts alleged to be a grave breach as defined in the Conventions and this Protocol or other serious violation of the Conventions or of this Protocol.” According to subpara. (ii), the Commission is as well competent to “facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol.” Parties to armed conflicts more than once considered bringing a case of alleged violation before the Commission but on reflection did not pursue this idea. Some other cases clearly fell outside the competence of the Commission. In 1998, the Commission conducted a mock enquiry in an exercise staged by the Swedish National Defence College, involving two parties to an internal conflict who

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the Commission have not been tested in practice, a discussion of the specific questions raised in the organizers’ letter of 10 December 2002 therefore retains a largely theoretical character. In attempting to provide an answer to these questions nonetheless, this paper takes into account the text of Article 90 as well as subsequent developments, in particular those that arose from discussions within the Commission itself. Some of these points deserve to be mentioned at the outset. Although established under Protocol I, the Commission at an early stage of its existence decided it was as well prepared to act in cases submitted by parties to an internal armed conflict, be it the government or an armed opposition group. The Commission is aware that as with cases arising in an international conflict, the actual exercise of its functions in an internal armed conflict remains entirely dependent on the consent of the parties concerned. The rule in Article 90(2)(a) that enables States parties to Protocol I to accept the competence of the Commission in relation to any other State party that has made the same declaration, obviously does not apply in an internal armed conflict. Therefore, consent in this case can only be ad hoc, like with the case of one State party to an international armed conflict not having previously accepted the competence of the Commission. Again, rather than regarding its competence as confined to grave breaches and other serious violations of the Geneva Conventions of 1949 or Protocol I, the Commission is prepared in principle to deal with any alleged serious violation of international humanitarian law that parties to armed conflicts may submit to it.

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had agreed to submit complaints to the Commission. The experience gained from that exercise prompted a series of meetings, both internally and with outside experts, about principles and rules that should govern the Commission’s modus operandi in similar future cases, and about practical steps in preparation of such events. Art. 90(2)(b) reads: “The High Contracting Parties may at the time of signing, ratifying or acceding to the Protocol, or at any other subsequent time, declare that they recognize ipso facto and without special agreement, in relation to any other High Contracting Party accepting the same obligation, the competence of the Commission to inquire into allegations by such other Party, as authorized by this Article.” In a paper presented on 9 Dec. 2002 to a group of governmental experts of the States parties to the Conventional Weapons Convention, the Swedish delegation mentioned that “[if ] interpreted widely, the mandate [of the Commission] could be seen to cover inquiries regarding also the CCW regime.” CCW/GGE/III/WP.7, on file with author. See also infra section VI. Support for the Commission’s position may already be found in the wording of Security Council Res. 780 of 6 Oct. 1992: requesting the Secretary-General to establish a commission of experts for the former Yugoslavia, it referred in the prospective commission’s mandate to “grave breaches of the Geneva Conventions and other violations of international humanitarian law” committed in the territory of that country. On the commission of experts, see M. Cherif Bassiouni, “The Commission of Experts Established pursuant to Security Council Resolution 789: Investigating

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With these decisions, the Commission has radically distanced itself from the views expressed earlier in the Commentary of the International Committee of the Red Cross (the ICRC) on the Protocols, which adheres strictly to the text of Article 90 and its location in Protocol I. Obviously, the conclusions of the Commission do not bind States or other parties to armed conflicts: it is not within its power to formally amend Article 90, and all it can do is hold out to the parties to armed conflicts the wider possibilities specified here. It should be noted that on several occasions, international forums have in more or less express terms acknowledged the steps taken by the Commission. A final point that needs to be mentioned in this introductory part concerns the focus and purpose of an enquiry. Article 90 is situated in Part V of Protocol I, entitled “Execution of the Conventions and of this Protocol”, and more specifically, halfway Section II, “Repression of breaches of this Protocol”. In contrast with the impression suggested by the latter title, not all provisions of Section II

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Violations of International Humanitarian Law in the Former Yugoslavia”, 5 Criminal Law Forum 2-3 (1994) pp. 279-340. ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987; original French version, 1986). In para. 3618, the ICRC writes that “[t]here is no doubt that only States are competent to submit a request for an enquiry …” and in paras. 3621-2: “The allegation which is submitted to the Commission must relate to a ‘grave breach’ or ‘serious violation’ of the Conventions or the Protocol… As we saw above, only grave breaches and serious violations of the Conventions and the Protocol fall under the competence of the Commission, and not those of other rules of the law of armed conflict, whether these are rules of customary law or not.” The Report on the Conclusions of the Centennial of the First International Peace Conference, 1999, mentions as a practical step towards enhancing compliance with IHL: “encouraging all states to accept the competence of the International Fact-Finding Commission and all parties to armed conflicts to make use of the Commission. The competence of the Commission to perform its functions in internal armed conflicts should formally be recognized.” UN Doc. A/54/381 ND Corr.1, para. 79(4)(c). The Security Council on 17 Sept. 1999 adopted Res. 1265 (1999) on Protection of civilians in armed conflict; op. para. 5 “[e]mphasizes the responsibility of States to … prosecute those responsible for … serious violations of international humanitarian law, [and] affirms the possibility, to this end, of using the International Fact-Finding Commission…” The Plan of Action for the years 2000-2003 adopted in Nov. 1999 by the 27th International Conference of the Red Cross and Red Crescent, para. 15, calls upon parties to armed conflicts “to examine systematically the utility and the possibility of resorting to the Commission in order to clarify facts or facilitate respect for international humanitarian law through its good offices.” At the behest of China, which appeared to fear that the Commission might attempt to intervene in its internal affairs, the paragraph adds that “[t]he International Fact-Finding Commission acts in accordance with international law.” 1999 International Review of the Red Cross No. 836, pp. 880-895.

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deal with individual criminal liability. Thus, Article 89 deals with cooperation among the States parties, and Article 91, with the liability of parties to a conflict to pay compensation. Nor can its location between these two articles warrant the reverse conclusion that the focus of Article 90 likewise must be on questions of State responsibility alone: other provisions in Section II deal with individual liability, and nothing in the wording of Article 90 specifically points in this or the other direction. Given the open language of Article 90, the Commission need not consider itself restricted to either one of these options. Other purposes are equally conceivable: e.g., completing or rectifying the historical record, or finding grounds for or against payment of compensation to victims or their relatives. In all of these cases, it will be for the requesting party to specify the purpose of its request. 2 Whether the Commission’s Procedures Would Allow for a Determination that International Humanitarian Law Has Been Violated Leaving open for the moment whether upon the completion of an enquiry, the Commission may make the determination referred to in the title of this section, the point to be made here is that upon reception of a request, its first task is to ascertain whether the request concerns an alleged serious violation of international humanitarian law. As the ICRC notes, “the Commission must pass judgment on the admissibility of the request. Breaches and violations which are not serious are excluded, which in itself implies first of all a legal appraisal…” With that, however, the ICRC regards the Commission’s competence to appraise the legal character of the alleged facts as exhausted. The ICRC states at the outset of its comments on Article 90 that the title of the article “actually indicates the scope of the Commission’s competence. In principle it is only concerned with facts, and essentially has no competence to proceed to a legal assessment of the facts that have been established.” And further down it asserts in even more pertinent terms that “[t]he Commission is competent to enquire into facts and not to judge.” While it may be the case that the Commission lacks the power to “judge” (a matter to be discussed in section IV), this does not decide the issue of whether it may offer its views on the legal interpretation of its findings of fact. In this respect, it may be noted that Article 90(5)(a), on the report the Commission is expected to submit to the parties upon concluding its enquiry, empowers it to add “such recommendations as it may deem appropriate”. I am not aware of any grounds why these “recommendations” could only be of a factual nature. Another question is: what are facts? On occasion, it may suffice to establish what is immediately discernible. Take the case of a hospital that is alleged to have 8 9

Commentary, para. 3621. Paras. 3603, 3620.

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been bombed and largely destroyed (which, if true, would doubtless represent a serious violation of international humanitarian law): a finding that the hospital is located next to a military objective and in effect has suffered insignificant damage as an apparent side effect of an attack aimed against that military objective, will be enough to disprove the allegation. Obviously, even in this case this is not the complete story: the pilot who dropped the bomb that damaged the hospital will have been acting under the orders of a superior command, and these orders in turn gave effect to a policy set at a higher strategic level. Even so, in this particular case the report on the facts-on-the-ground will suffice to close the dossier, not simply because of this material finding but because the Commission’s report on the plain facts permits the conclusion that no serious violation of international humanitarian law has occurred, thus refuting the allegation. In other cases, an enquiry into the immediately visible may not be enough. Consider the case of an armed unit that enters a village market place where a number of ostensibly innocent people are standing around, shoots and kills one of them, and withdraws: a report of the Commission “finding” these uncontested “facts” would do no more than confirm the obvious. If we suppose further that the victim was a guerrilla fighter and member of an armed opposition group in a multi-party internal armed conflict, the requesting party may have submitted its request primarily with a view to finding out which persons, and which party to the conflict, were behind the shooting. Indeed, this party probably also wanted to have the question answered whether killing an unarmed guerrilla fighter in these circumstances of fact amounts to a serious violation of international humanitarian law. For the Commission to enter into these more distant features of the case would require an enquiry into matters such as “chain of command” and party accountability, as well as an appreciation of the legal aspects of the case in the specific context of the ongoing internal armed conflict. In my view, the Commission is perfectly competent to undertake these tasks in a case where one party’s request is so focused and other parties concerned are prepared to co-operate in, or tolerate, the enquiry. Indeed, the initial decision of 10

11

The example reflects an incident of the Vietnam war, with the U.S. being accused of having bombed Bach Mai Hospital on the outskirts of Hanoi and thus having caused severe damage to the complex and deaths and injury among the patients and medical staff. North Vietnam subsequently acknowledged that patients and staff had been evacuated beforehand, and in contrast with North Vietnamese pictures published in the media, U.S. photos show that damage to the complex had been negligible. See: W. Hays Parks, “Linebacker and the Law of War”, 34 Air University Review No. 2 (1983) pp. 2-30, at pp. 22-23 (photos), p. 25 (text). This example too, reflects reality: in discussions about a possible involvement of the IHFFC in the internal armed conflict in Colombia, a guerrilla party mentioned such an incident as one it would wish to submit to the Commission, to find out who had instigated and ordered the attack and to see its view confirmed that such wanton killing outside the context of actual battle was illegitimate. It may be noted that experts are divided on this point.

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the Commission that a request concerns an alleged serious violation of international humanitarian law and therefore is admissible cannot have the effect of depriving the “fact” to be examined of its character as an alleged violation of the law: rather, this continues to be a legally qualified fact, a “legal fact”. Therefore, apart from the act done by the actual perpetrator, the “facts” of an alleged violation encompass all other acts or omissions anywhere in the chains of command and involvement that may ultimately warrant the conclusion of individual or party liability. The ICRC touches upon this matter in its comments on the other competence of the Commission that was not dealt with thus far. As defined in Article 90(2)(c)(ii), it is the competence to “facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol.” Assuming that the Commission in the course of its enquiry “has taken note of facts which seem to it to constitute” such serious violations, the ICRC finds it “difficult to imagine that the Commission can invite the restoration of an attitude of respect for certain provisions without having formed an opinion regarding their nonrespect.” It goes on to state that: However, as the Commission must not pronounce on questions of law, it must be careful not to include such elements of legal evaluation in its report. Thus they would only have internal value, and the Commission should only express in the report a prima facie appraisal.

This statement is tantamount to an admission that the Commission may express its opinion on the legal evaluation of the case; at any rate, I cannot give the phrase “prima facie appraisal” any other meaning. If this is a correct reading of the quoted text, there is no wide gap separating my views from those of the ICRC. Apart from a difference in style (with the ICRC with its customary caution urging the Commission to be “careful”) the main distinction is that for the ICRC, the capacity of the Commission to “express its prima facie appraisal” appears to arise solely when, and if, it follows up its report on the facts with an offer of good offices, whereas in my perspective, the Commission will be able to express a legal appraisal whenever its findings, in light of the specificities of the request submitted to it, warrant the inclusion of such a paragraph in its report. Indeed, for the Commission to recommend parties to use its good offices capacity requires, apart from a finding that certain material facts have occurred, a statement of its views on whether those facts amount to violations of international humanitarian law. Moreover, once the Commission has entered into the good offices phase, it obviously will continually have to hold the developing situation against the light of that body of law. 12 13

Supra note 2. Commentary, para. 3624 (footnotes omitted).

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While it is not here the place for a thorough discussion of the Commission’s good offices function, mention may be made of the view widely shared in the Commission that its two competences, of enquiry and good offices, are independent of each other nor even necessarily consecutive. Indeed, the Commission may lend its good offices in a situation where no request for an enquiry is forthcoming. In particular in situations of internal armed conflict, this may not be an unlikely scenario, thus potentially rendering good offices the more important of its functions. In short, my answer to the question in the title of this section is affirmative. In the report on the results of its enquiry into an alleged violation of international humanitarian law, and depending on the specificities of the case, the Commission may be deemed competent to state its view that international humanitarian law has, or has not, been violated. As for its good offices function, the need for restoration of an attitude of respect for international humanitarian law presupposes the recognition that violations are actually occurring. 3 Whether the Commission’s Procedures May Grant Individuals a Right to Initiate or Participate in Proceedings, or to Claim Reparations The text of Article 90 as well as its context and drafting history leave no room for doubt that the Commission was designed as an instrument at the disposal of States. To the best of my knowledge, the question of whether it might also have power to deal with complaints of individual victims of violations of international humanitarian law was never raised in the negotiations that preceded the adoption of the article. The IRCR believes that “[t]here is no doubt that only States are competent to submit a request for an enquiry to the Commission, to the exclusion of private individuals, representative bodies acting on behalf of the population, or organizations of any nature.” First of all, no individual or organisation has ever attempted to submit a request for an enquiry to the Commission. Rather, non-governmental organisations such as the ICRC and Amnesty International have regularly urged parties to conflicts to engage the services of the Commission, notably in the context of the armed conflicts in the former Yugoslavia and in the Middle East. The Commission has always been most appreciative of this support. Suppose however that an individual (say, an inmate of a prisoner-ofwar camp or comparable detention centre, or a civilian whose house has been destroyed by a bomb) were to lodge a complaint with the Commission concerning an alleged serious violation of international humanitarian law committed by a party to a given armed conflict: could the Commission simply declare the complaint admissible and start an enquiry? Arguing in favour of this possibility, 14

Commentary, para. 3618.

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Dr. Liesbeth Zegveld suggests that Article 90(2)(c)(i) “merely requires an allegation that international humanitarian law is seriously violated. The Fact-Finding Commission could agree that it may act upon such an allegation…” On the face of it, this may look like a plausible interpretation of the sub-paragraph. Yet, when read in context (as one should do), the text concludes and completes the set of provisions defining the system whereby States may declare their acceptance of the competence of the Commission in relation to other States that make the same declaration. This makes it a most unlikely basis on which to found a competence of the Commission to entertain individual complaints. One might alternatively look at sub-paragraph (d), which refers to situations other than those where both the requesting State and its adversary have made the declaration. In such other situations, it suffices for one party to the conflict to request an enquiry and for the other party to give its consent. Obviously, to substitute “individual” for “party to the conflict” already requires a major tour de force. Assuming that the Commission were prepared to engage in such acrobatics, there remains the express requirement of consent of the other party concerned. With regard to this point, Dr. Zegveld argues that to find facts access to the territory of the incriminated party is not always indispensable: “In particular cases, [the Commission] may obtain detailed information through other channels, such as the media, members of a party to the conflict who have fled the country and [are] willing to provide information, or other international bodies that are present in the State territory concerned.” All of this is absolutely true. Obviously, however, the party concerned would be fully entitled to denounce any such activity on the part of the Commission as an attempted exercise of a right of initiative; a right the diplomatic conference of 1974-77 explicitly denied it. More importantly, entering upon this path the Commission would do nothing but what Amnesty International, Human Rights Watch and other non-governmental organisations are doing all the time, and its reports would have no different value than is – quite rightly – attributed to the reports these organisations are producing. This, indeed, is where the crux of the matter lies: while the requirement in Article 90 of consent on the part of all the parties concerned may have been designed primarily to ward off the spectre of a Commission equipped with compulsory jurisdiction, it also highlights its distinctive feature as a treaty organ designed to function on the international plane and in cooperation with both sides to the dispute. Reflecting this element of involvement of all the par15

16 17

Liesbeth Zegveld, “Comments on the Presentation of Prof. Frits Kalshoven”, 15 Humanitäres Völkerrecht (2002) 216-218, at 217. For the text of Art. 90(2)(c)(i), see supra note 2. Loc. cit. On the drafting history of Art. 90 see, by this author, “The International Humanitarian Fact-finding Commission: its Birth and Early Years”, in E. Denters & N. Schrijver (eds.), Reflections on International Law from the Low Countries (1998) 201-215.

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ties concerned, the Commission’s report on the facts and recommendations may be expected to carry considerable weight with the parties and thus may be more readily accepted and applied in practice, even by a party found in disrespect of international humanitarian law, than had there been no such involvement. I am therefore convinced that the Commission, when faced with a nonparty request, will be able to do no more than try and establish contact with the authorities of all the parties concerned, transmit the request and ask for their permission to undertake the enquiry. Indeed, it deserves emphasis that the Commission may take such an initiative without any request, whether from an individual victim, an organisation representing a number of victims, a party to the conflict or anyone else. However, the explicit refusal of a right of initiative, combined with the often delicate features of concrete political situations, have thus far withheld the Commission from taking such steps, even in the face of blatant violations of international humanitarian law and irrespective of whether parties to conflicts had previously declared that they accepted the competence of the Commission. While the above applies in the event of a request for an enquiry submitted by any “private individuals, representative bodies acting on behalf of the population, or organizations of any nature” (to quote the phrase of the ICRC), another question altogether, and perhaps closer to reality, is whether in the course of an enquiry of the Commission pursuant to a request by a party to the conflict and with the express consent of all the parties concerned, individuals might lodge with the Commission complaints about violations of international humanitarian law of which they or their relatives have suffered the consequences. The rules of procedure of the Commission make no provision for this eventuality, nor has the point been brought up in relation to actual situations where a role for the Commission was envisaged. Yet, there are no grounds in fact or in law why this road would have to be considered closed once and for all. In particular in a situation where, as is conceivable, the Commission is engaged in a long-term activity in a country and has set up office in the territory, a role for the Commission in the handling of individual complaints might be regarded by the authorities as a useful addition to the existing instruments. In this respect, mention should be made of two other institutions that fulfil similar roles in comparable circumstances. One is the ICRC. Broadly mandated to protect and assist victims of war and to act as promoter and guardian of international humanitarian law, it is specifically empowered “to undertake the tasks incumbent upon it under the Geneva Conventions, to work for the faithful application of international humanitarian law applicable in armed conflicts and to take cognizance of any complaints based on alleged breaches of that law.” 18

Statutes of the International Red Cross and Red Crescent Movement, adopted by the International Conference of the Red Cross (1986, amended 1995), Art. 5(2)(c). Text unchanged in Statutes of the ICRC (1998) Art. 4(1)(c).

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Demonstrating how this may work out in practice, a onetime head of the ICRC delegation in Colombia once reported that: In addition to the hostage cases and complaints registered from persons in detention, the ICRC annually registers over 1,500 individual complaints from victims of breaches of international humanitarian law committed by the various actors of the armed conflict. These complaints may concern extrajudicial executions, non-restitution of bodies, and threats against life and property. In many instances, ICRC delegates transmitting such complaints can help to establish authorship of the violations, demand and sometimes obtain reparation, clarify the seriousness of threats and at times obtain the retraction thereof, identify location of graves, and negotiate the restitution of corpses. The ICRC also regularly submits confidential reports on such complaints and reminders of prevailing provisions of international humanitarian law to the government, the insurgents, and the autodefensas [a rightist paramilitary grouping].

It should be noted that the ICRC has been established in Colombia since 1980: for sure a long-term commitment, and plausibly a longer one than the Commission should ever hope or wish for. In the course of time, the ICRC has been able to expand its activities over the entire country. While its set policy is to avoid an active role in bringing the offenders of international humanitarian law to justice, the quoted text may show that at least part of its activities in reaction to individual complaints bring it quite close to doing just that. More in general, the activities of the ICRC in Colombia appear to cover much if not all of the ground the Commission could cover. The remaining, significant difference is that while the ICRC is said to be primarily victim-oriented, the Commission by virtue of its mandate would be act- and actor-oriented. The second body I wish to mention here is the Inter-American Commission on Human Rights. Like the ICRC, it has a broad mandate, viz.: to promote the observance and protection of human rights in the Hemisphere. One of its powers is to receive and deal with individual complaints, according to a detailed set of procedures. Although its mandate does not include international humanitarian law, the many internal armed conflicts in the hemisphere have motivated a prac19

20

Pierre Gassmann, “Colombia: Persuading Belligerents to Comply with International Norms”, in Simon Chesterman (ed.), Civilians in War (2001) pp. 67-92, at p. 90, footnote 16. Art. 106 of the OAS Charter defines the “principal function” of the IACHR as “to promote the observance and protection of human rights” (etc.). Art. 41 of the American Convention on Human Rights elaborates this mandate into a detailed list of “functions and powers”, including such items as “developing an awareness of human rights among the peoples of America”, and advisory services to member States. A specific function of relevance here is “to take action on petitions and other communications” as elaborated in Art. 44 et seq. (Art. 41(f )).

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tice whereby the Inter-American Commission measures the conduct of parties to such conflicts against the yardstick of international humanitarian law as well, basically on the grounds that in warlike situations, a human rights norm like the “right to life” can be correctly interpreted only in the light of the rules of international humanitarian law governing that right in time of armed conflict. However, in contentious cases such as the ones that arise out of individual complaints, the Commission is precluded from expressly applying international humanitarian law in its decisions. The ICRC, on the other hand, is entirely focused on applying international humanitarian law, without disposing of any official procedures. Yet, the lines of conduct followed by both institutions may lead to the same practical result that individuals feel they have been given satisfaction for violations of international humanitarian law they were complaining about. In sum, there are good grounds to conclude that the Commission may receive individual complaints about serious violations of international humanitarian law and dispose of these, along the same lines as is being done in practice by the ICRC and the Inter-American Commission on Human Rights. Within its existing legal framework and accepted interpretations thereof, the Commission might assume this role in situations where it is actually present in a country, engaged either in a fact-finding or good offices role. In doing so, it would be distinguished both from the ICRC and the Inter-American Commission in that its mandate focuses expressly and exclusively on alleged violations of international humanitarian law. 4 Whether the Commission’s Procedures Might Have a Judicial Character On the question of whether procedures of the Commission might have a “judicial character” and the outcomes of these procedures might be “legally binding and enforceable”, the answer must be an unqualified “No”. As stated by the ICRC (in terms quoted earlier in this report), the Commission should not “pronounce on questions of law” since it has no power to “judge”. This is doubtless correct: its makers deliberately styled its powers a “competence” rather than “jurisdiction”. The question may however be broached from a less formal angle. In practice, what counts is whether a body that is competent to examine the facts of a case is 21

22

The point was decided in a case brought by Colombia before the Inter-American Court of Human Rights: Las Palmeras, preliminary objections, judgment of 4 Feb. 2000, Series C No. 66. On this case, see, by this author, “State Sovereignty versus International Concern in Some Recent Cases of the Inter-American Court of Human Rights”, in Gerard Kreijen (ed.), State, Sovereignty, and International Governance (2002) pp. 259-280. Initial proposals at the diplomatic conference (1974-77) that adopted the Protocols of 1977 contained elements that gave the proposed commission quasi-judicial powers; in the course of the proceedings, these were systematically removed.

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in a position to express its views on the legal aspects of the case as well; whether the opinions thus expressed carry any weight with the relevant authorities, and whether the procedure brings a degree of satisfaction to complaining individuals. On these aspects, I concluded in section II of this report that “[i]n the report on the results of its enquiry into an alleged violation of international humanitarian law, and depending on the specificities of the case, the Commission may be deemed competent to state its view that international humanitarian law has, or has not, been violated.” I also made mention of the Commission’s good offices function, an activity which cannot be put in place without the prior realistic appraisal that violations of international humanitarian law are occurring. As well, section III found “good grounds to conclude that the Commission may receive individual complaints about serious violations of international humanitarian law and dispose of these, along the same lines as is being done in practice by the ICRC and the IACHR.” As experience shows, the lack of a truly judicial capacity of these two bodies need not affect the practical value of their work, since the authorities will often be seen as willing to comply with their suggestions and recommendations. Any activity of the Commission in relation to individual complaints too, would be non-judicial or, at best, pre-judicial, and its findings and recommendations would be neither binding nor enforceable (save for the hypothetic assumption that parties were to attribute such overwhelming force to the Commission’s report). Again as with the two other institutions considered here, this need not detract from the practical value such activity on behalf of individual claimants might have. 5 Whether other Specific Characteristics of the Commission’s Procedures Either Support or Weaken Its Role in Providing Individual Victims of Violations of International Humanitarian Law with Redress Paragraphs 3-5 of Article 90 provide a set of rules for the actual work of the Commission in the event of an enquiry. While the rules may be suitable for certain occasions (mostly, the classical war between two civilized States), they will be too heavy, slow, and expensive in other circumstances. Thus, in most cases of internal armed conflict a flexible approach and a lean and inexpensive procedure will be an absolute requirement. Fortunately, paragraph 3(a) opens with the phrase: “Unless otherwise agreed by the Parties concerned …” In light of this phrase, I have refrained in the foregoing from commenting on the formal procedural rules set forth in Article 90. The opening phrase of Article 90(3)(a) introduces yet another element of consent on the part of the parties concerned: deviation from the “official” rules requires their agreement to the procedure actually to be applied in the case on hand. While this does provide an unwilling party with an extra opportunity to

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drag its feet or flatly refuse its cooperation, I suggest that the point carries less weight than might be feared, given that the whole enterprise of engaging the Commission in an enquiry hinges on (prior or ad hoc) consent of the parties concerned anyway. In stark contrast with the formal procedure set forth in Article 90 for the event of an enquiry, the Article is totally silent on the procedural aspects of good offices. This is all for the best: when the time comes for the Commission to carry out this function, it will have its hands free to act efficiently, in accordance with the needs of the situation – and, once again, with the consent and probable cooperation of the parties concerned. Given the potential flexibility of the Commission’s enquiry procedure and the total liberty to set up a good offices procedure in accordance with the parties’ wishes, this opens the possibility of building some sort of individual complaints mechanism into either procedure. 6

Concluding Remarks

As mentioned more than once in the foregoing, the ICRC states in its Commentary that “[t]he Commission is competent to enquire into facts and not to judge.” Admittedly, the report the Commission produces on the completion of an enquiry will not have the status, nor carry the weight, of a judgment. Rather, it may be expected to be the outcome of an independent, careful investigation into facts in the legal setting of an “alleged violation of international humanitarian law”; an investigation undertaken at the request of one party to an armed conflict and with the acquiescence if not cooperation of the adverse party or parties. As noted, the requisite consent of all parties concerned enhances the likelihood that once engaged, the Commission’s services will be effective. The question of whether the functioning of the Commission, whether in enquiry or good offices, will provide an effective means for the handling of individual complaints remains dependent, apart from the wishes of the parties involved, on the concrete situation. Complaints, whether of a party or an individual, about the effects of strategic air warfare are very different than those concerning maltreatment of detained persons; the battlefield and occupied territory are worlds apart; and so on. In all of these circumstances, the Commission will encounter other agencies and institutions carrying out functions more or less comparable to its own. As noted, the ICRC extends its protection to the victims of armed conflict wherever possible. The example it thus sets shows that uninterrupted presence in a theatre of war may result in increased effectiveness of an agency’s operations. The same may be said of other agencies, such as the Office of the UN High Commissioner for Human Rights in Colombia or the field officers of the UN High Commissioner 23

Supra note 9.

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for Refugees. In contrast, judicial measures, even when these are imposed by competent courts, may actually lack all effectiveness. There is a tendency to extend the spheres of activity of human rights agencies to cover international humanitarian law as well. Another trend is the creation of additional special commissions for specific sets of norms that belong both to human rights law and international humanitarian law. A recent example is the adoption of an Optional Protocol to the Torture Convention and the creation therein of a Subcommittee on Prevention; an instrument so close to international humanitarian law that it was found necessary to include a provision to the effect that the Protocol does not affect States’ obligations under the 1949 Geneva Conventions and the 1977 Additional Protocols, nor the opportunity for States “to authorize the International Committee of the Red Cross to visit places of detention in situations not covered by international humanitarian law” – a form of trespass the ICRC has been successfully exerting since time immemorial. While typical human rights areas such as torture and, in general, detention are covered by a growing number of increasingly effective agencies, the sphere of use of prohibited means and methods of war, although certainly not totally neglected by the ICRC, yet is less thoroughly covered. In this respect, a suggestion is worth noting that was tabled in December 2002 by the Swedish delegation at a meeting of government experts. Concerned to improve compliance with States’ obligations under the Conventional Weapons Convention, the delegation suggested that one way or another a formal link might be established between that Convention and the IHFFC. To the best of my knowledge, the suggestion has not been followed up. Yet, it would be of interest to see whether it could be brought to life and, in particular, whether it could be made to include individual complaints as well. One has to be an optimist to entertain such an idea even today, with the Commission having been idle now for more than a decade. Indeed, recent events hardly support such optimism. When the need arose to have the situation in Darfur investigated, the UN Secretary-General chose not to utilise the Commission and instead established a five-member commission under the chairmanship of Professor Antonio Cassese, former member and President of the International Military Tribunal for the Former Yugoslavia. While the com24

25 26

Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by UNGA Res. 57/199 of 9 Jan. 2003. The quoted provision is Art. 32. Supra note 5. SC Res. 1564 adopted 18 Sept. 2004 under Ch. VII of the UN Charter requested the Secretary-General to “rapidly establish an international commission of inquiry in order to immediately investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties, to determine also whether or not acts of genocide have occurred and to identify the perpetrators of such violations with a view to ensuring that the those responsible are held accountable.” On

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petence of this group is not to be doubted, it is nonetheless a matter of regret that the Commission was once again bypassed. In other recent cases as well, national authorities confronted with allegations of serious violations of international humanitarian law have desisted from resorting to the Commission, thus foregoing the chance of having the facts established and reported upon by the only qualified international organ specifically created for such events. In these circumstances, one may be justified in wondering whether the Commission still has a future before it. Yet, as long as it exists, I for one will continue to plead its cause, including, in proper cases, its capacity to play a significant role in the settlement of individual complaints.

15 Oct. 2004 the establishment of the Commission of Inquiry was announced as an independent body supported by the Office of the UN High Commissioner for Human Rights, which would provide the secretariat and legal research and investigative teams. The Commission, which was given a three month mandate, began its work on 25 Oct. 2004.

PART 7 humanitarian law and human rights

Chapter 39 Protocol II, the CDDH and Colombia*

1

Introduction

As often happens with people from neighbouring countries, I first met Professor Erik Suy not in Holland or Belgium, but in Italy; to be more precise, in the early 1970s in San Remo, at a meeting of the infant International Institute of Humanitarian Law. It was the time when the process of “reaffirmation and development in international humanitarian law” was just taking off, a process that would come to its conclusion on 10 June 1970 with the definitive closure of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (or CDDH). Now that Erik Suy has reached the stage where he can rightfully call himself emeritus, I am pleased to offer him this contribution on a subject that has always continued to interest him as it has me. On 8 June 1977, the CDDH adopted two Protocols additional to the Geneva Conventions of 1949. One (Protocol I) “reaffirms and develops” the humanitarian law applicable in international armed conflicts: a body of law of ancient origin and that even in the shape of treaty law has more than a century of development behind it. The other, Protocol II, according to its opening Article “develops and supplements” Article 3 common to the 1949 Conventions. *

1 2

3

4

Published earlier in K. Wellens (ed.), International Law: Theory and Practice (1998) pp. 597-622. Also published as “El Protocolo II, la CDDH y Colombia”, in Alvaro Villarraga Sarmiento (ed.), Derecho Internacional Humanitario Aplicado – Los Casos de Colombia, El Salvador, Guatemala, Yugoslavia y Ruanda (1998) pp. 37-78. After its French acronym. Official Records (OR) of the Conference, Geneva (19741977) published by the Swiss Federal Political Department, Bern, 1978. Four Geneva Conventions of 12 Aug. 1949 for the protection of war victims, published in 75 UNTS (1950) p. 31 et seq.; also in: Roberts & Guelff, Documents on the Laws of War, 2nd ed. (1989) p. 169 et seq.; ICRC, Handbook of the International Red Cross and Red Crescent Movement, 13th ed. (1994) p. 23 et seq. Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977; published in 1125 UNTS (1979) p. 3 et seq.; also in: Roberts & Guelff, op. cit. note 2, 389 et seq.; ICRC, op. cit. note 2, p. 198 et seq. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), of 8

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In 1949, common Article 3 had been introduced into the Conventions as the first treaty provision ever expressly written for situations of internal armed conflict (or, in its own more formal terms, for “the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties”). Far from providing a complete catalogue of rules for the waging of internal armed conflict, Article 3 sets forth some basic precepts for the humane treatment of persons who do not, or no longer, participate in the hostilities; precepts, moreover, that were largely derived from the (equally novel) international law of human rights. Protocol II not merely “develops” these basic precepts: it “supplements” them with at least a few rules governing aspects of the waging of an internal armed conflict, notably, rules for the protection of the civilian population against the effects of hostilities. On these grounds, Protocol II may be said to break more new ground than Protocol I has done. The other side of the coin is that it is less solidly founded in history. If only on that score, even more effort may be expected to be required to turn it from law on the books into living law. This paper describes the process of actualisation of Protocol II with focus on one particular country, viz., Colombia. The reasons for this choice are the following: Like other Latin-American countries, Colombia for decades has been (and still is) the scene of internal armed conflict. Again like its neighbours, at the time of the CDDH it had serious misgivings about certain essential features of Protocol II. Yet, in 1995 it unreservedly ratified the Protocol, followed in 1996 by its acceptance of the competence of the International Humanitarian FactFinding Commission established pursuant to Article 90 of Protocol I. Last, but not least, it so happens that the present author was able to observe some of these developments from a rather close distance.

5

June 1977; published in 1125 UNTS (1979) p. 609 et seq.; also in: Roberts & Guelff, op. cit. note 2, 448 et seq.; ICRC, op. cit. note 2, p. 270 et seq. Art. 3 provides for the humane treatment, without discrimination, of persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat. It prohibits acts such as murder, torture, humiliating and degrading treatment, the taking of hostages, and “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” It prescribes that “the wounded and sick shall be collected and cared for” and recognizes the right of “[a]n impartial humanitarian body, such as the International Committee of the Red Cross,” to offer its services to the parties to the conflict. The parties are moreover urged to bring into force, by means of special agreements, all or part of the other provisions of the Conventions. And the final paragraph asserts that the application of Article 3 does not affect their legal status.

Protocol II, the CDDH and Colombia 2

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Protocol II in the CDDH

The CDDH took four sessions, from 1974 to 1977: a great deal longer than the one-session Diplomatic Conference of 1949, and at least twice as long as the Swiss Government, host to the CDDH, had counted with. An inordinate amount of time was taken up by political issues: the unfinished decolonisation process, the Cold War, the war in Viet Nam. By far the larger portion of the remaining weeks and months was spent on negotiating Protocol I, with discussion of the various parts of Protocol II usually following in the wake of the comparable parts of Protocol I. For a long time the tendency was to draft the provisions of Protocol II as virtual copies of those accepted for Protocol I, including those governing combat (means and methods of warfare, protection of the civilian population against the effects of hostilities). Underlying this tendency was the evident belief that the armed conflicts to which Protocol II would apply, though occurring in the territory of a single State, in all other material respects would be very similar to armed conflicts between States. At the same time, another trend was working in a diametrically opposite direction. Its goal, in the words of David Miller, Head of the Canadian Delegation and a proponent of the first hour of this trend, was “to produce a protocol which clarified what was meant by non-international conflicts and contained clear, simple humanitarian provisions of a kind that any responsible government would willingly apply.” In particular, he doubted that Protocol II would require anything like a complete set of combat rules. In the end, the latter approach carried the day. Just days before the closure of the Conference, an amendment to the whole of draft Protocol II, introduced by Pakistan but with the evident blessing of David Miller, aimed effectively to reduce the text to just such a collection of “clear, simple humanitarian provisions” while remaining signally silent on matters of actual warfare (use of weapons, military objective, etc.). In the ensuing turmoil, very few of the earlier, more ambitious proposals were salvaged. The outcome was a Protocol II of 28 articles (or 15, discounting the three introductory and ten final provisions) as compared to the 102 (or 84) of Protocol I. Could it be assumed that as a result of this lastminute manoeuvre, each and every “responsible government” represented at the Conference would not just be willing to apply its provisions but eager to subscribe to it? The answer, of course, is: no. One stumbling-block that had never stopped bothering Latin-American and certain other delegations concerned the scope of application of Protocol II. 6

7

Plenary Meetings, CDDH/SR.18, 11-3-74, O.R. Vol. V, p. 184. At the second session, the Canadian delegation submitted a draft amendment concerning Protocol II as a whole, which gave expression to Mr Miller’s preoccupations; CDDH/212, 4-4-75, O.R. Vol. IV, p. 191. “Simplified version of Protocol II”, CDDH/427, 31-5-77, O.R. Vol. IV, passim.

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Common Article 3 simply requires the existence of “an armed conflict”. For the new Protocol, this was not deemed enough, and the need was felt to “clarify”, i.e. define, what was meant by “non-international armed conflict”. Now, what mood would prevail in writing the definition: a liberal or a restrictive one? In other words, would the Protocol have a low or a high threshold? And, no less important: who would decide whether a situation actually amounts to such an armed conflict? Immediately connected with these issues of threshold and competence to decide was another matter. An internal armed conflict first and foremost is an internal affair: at any rate, that is how governments of countries involved usually prefer to treat it. But already with common Article 3, and much more so with the new Protocol II, this “internal affair” is governed by internationally agreed rules of humanitarian law written specifically for such a situation, and to that extent may be perceived as a matter of international concern. How to control this effect; or, more precisely, how to forestall attempts to utilise the Protocol as an instrument of intervention? Of these three connected issues, two were resolved in a manner that could satisfy the concerns, in particular, of the Latin-American countries. Article 1, defining the “material field of application” of the Protocol, requires involvement of the armed forces of the State and, on the other side, of armed groups “which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” While obviously open to interpretation, this language unmistakably is quite a bit more exacting than the old phrase “armed conflict”. All too liberal interpretations are moreover cut off by the understanding in the second paragraph that “[t]his Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.” Rare cases apart, a government that does not wish to admit that the situation in the country is one of armed conflict should not find it too difficult to argue its position on the basis of these two paragraphs. At the same time, nothing in Article 1 prevents other actors to advocate the opposite view, on the basis of the same facts and the same language. They may do this with the most honourable intentions: to save lives, to avoid unnecessary suffering and destruction; in general: to promote the cause of humanitarian law. Or they may have less lofty goals: to get a foot in the door or, more specifically, to intervene in the local political process. Here, the other point won by the LatinAmerican and other, like-minded countries comes to their assistance. Article 3, entitled “non-intervention”, seeks to protect the sovereignty of the State and to exclude any conceivable grounds purporting to justify direct or indirect intervention “in the armed conflict or in the internal or external affairs” of the State. Again, this language is broad enough to furnish the government with a solid list of arguments to ward off undesirable initiatives. But once again, outside actors

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too may find good grounds to advocate a milder if not outright positive appreciation of the initiatives the government wishes to denounce as intervention. Evidently, all the precautions built into Protocol II notwithstanding, different readings of Articles 1 and 3 in their application to concrete situations are still apt to result in a shouting match. Nor is this something unusual in inter-State relations: any dispute between two or more of them on an issue of international law ends in a draw unless some third body is authorised to decide it. There is, of course, the International Court of Justice. Unfortunately, its jurisdiction is not compulsory, and (the government of ) a State struggling with a situation of internal conflict may not be particularly eager to voluntarily give up its power of auto-interpretation of Articles 1 and 3 of Protocol II, in favour of an unpredictable decision by the Court. Its mere existence therefore is not enough to break the impasse. What about the UN Security Council: does this body have authority to impose its will on the reluctant State? For sure, its decision-making power is not dependent on voluntary cooperation by the State in question (unless it concerns one of the five veto powers). And surely, the Security Council has power to determine whether an internal situation threatens international peace and security. However, such a decision is a political one; it does not necessarily rest on legal argument nor, indeed, specifically on a careful assessment of the actual situation in the light of the conditions set forth in Article 1 of Protocol II. Hence, although the State cannot very well behave as though the Security Council had never spoken, it may stick to its refusal to recognise the situation as one of internal armed conflict in the sense of the Protocol. And since other actors may continue to believe that they have the law on their side in qualifying the conflict just so, the stalemate persists. Apparently with a view to this impasse, Latin American delegations at the CDDH advocated a solution whereby the power to determine the character of a situation of internal violence would be laid squarely with the State. Interestingly, the original proposal, as submitted by the delegation of Brazil, was for a provision making Protocol II applicable “from the beginning of any armed conflict within the terms of Article 1, and recognized as such both by the High Contracting Party on whose territory the armed conflict is considered to exist and by the authority to which the armed forces or groups opposed to the Government are subject.” The Brazilian delegation subsequently withdrew the proposal, but its Head of Delegation, Ambassador Carlos Calero-Rodrigues, repeated almost verbatim in a meeting of Committee I that for them, “the position was clear: draft Protocol II could not be applicable unless its applicability was recognized both by the High Contracting Party in whose territory the armed conflict was considered to exist, and by the adverse Party.” Yet, almost in the same breath he went on to 8

In draft article 2 on “Beginning and end of application”; CDDH/I/79, 21-3-74, O.R. Vol. IV, p. 12; emphasis added.

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state that for his delegation “Protocol II could not be applicable unless the High Contracting Party was satisfied that the conditions mentioned in that Protocol had been met.” It was this version of the proposal, with no reference to the adverse party, which was on the table in subsequent negotiations. Indeed, that very reference in the earlier Brazilian proposal was evidence of a very different attitude from the one that would gain the upper hand in the CDDH: in the later phases, delegations went out of their way to purge Protocol II of almost all references to the adverse party (let alone Party, with capital P!) – as if an internal armed conflict were a sort of disaster befalling a government and its armed forces, even though, undeniably, with the participation of other, unmentionable creatures – indeed, of criminals. Admittedly, the proposal to give the State a decisive voice did not lack a certain logic nor, indeed, a sense of realism: experience shows that a refusal on the part of the government to recognise a state of armed conflict renders the application of rules of international humanitarian law that much more uncertain. Yet it was totally unacceptable as a rule of treaty law, since it could effectively deprive other actors in the international community of any possibility to maintain with the law in their hands that even a manifest case of large-scale and sustained warfare between government forces on the one hand and dissident armed groups on the other should rightly be qualified as an internal armed conflict in the sense of Protocol II. Fortunately, though the proposal won the support of some other than Latin American delegations, it was broadly rejected by Committee I. The issue was raised again in a Plenary Meeting of the final session of the CDDH, by Ambassador Héctor Charry Samper, the then Head of the Colombian Delegation (as well as spokesman of the Latin-American group). He enquired “what was the precise interpretation to be given to the last part of paragraph 1 [of Article 1] relating to dissident armed forces, and who would decide when the conditions laid down in that connexion should be applied.” In response to this ostensible request for information, Konstantin Obradovic, chairman of the working group of Committee I that had negotiated the text of Article 1, was quick to caution that the Article “represented a very fragile consensus reached only after lengthy consideration [and] that it would be extremely inadvisable to seek to interpret its provisions.” Whereupon Ambassador Charry Samper stated that: in that case, he would propose the addition, at the end of paragraph 1, of the following sentence, which would make the text clearer: “The determination of

9 10 11

CDDH/I/SR.29, 17-3-75, O.R. Vol. VIII, p. 285. To that effect: Romania, India, Indonesia, Iran, Burundi and (less clearly) Nigeria; loc. cit. CDDH/SR.49, 2-6-77, O.R. Vol. VII, p. 59.

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the conditions referred to above shall be a matter for the State in which the conflict occurs.”

Although his oral amendment was positively received by the same parties who earlier had endorsed the Brazilian proposal, it was bound to fail, given that Committee I had accepted the text of Article 1, no matter with how fragile a consensus. Aware that his amendment did not stand a chance, Ambassador Charry Samper withdrew it, but not without reiterating one last time “that paragraph 1 of Article 1 failed to specify who was to decide whether or not the conditions set out in that paragraph were fulfilled.” Just so; but at that stage of the Conference the statement could do no more than mark the speaker’s displeasure at the outcome of a battle fought and lost. 3

Speculations about Motives

What may have motivated Latin-American delegations to press so hard for a clause aiming to remove the possibility of any dispute about the interpretation of the rules on application and non-intervention by according one of the parties to such a potential dispute a decisive vote? Was it, as suggested by the original Brazilian presentation, the idea of reciprocity between the parties to the armed conflict? Or, as the Colombian last-minute amendment seemed to suggest, the concern that an essential element in the rules on application of Protocol II had been left undecided? Concern for legislative perfection seems the least likely motive. Admittedly, diplomats both from Latin-American and other countries occasionally spend an inordinate amount of time and energy on polishing a text to the last comma; but I cannot for a moment believe that Ambassador Charry Samper, who had arrived as a participant to the CDDH just for the last session, had no better motive than legalistic precision for his solo performance in the Plenary meeting. Reciprocity, on the other hand, may well have played a part in the considerations. It should be borne in mind that a crucial issue at the CDDH had been the status of “wars of national liberation”. The hard-fought outcome of the debate on that issue is that the Geneva Conventions and Protocol I are deemed to apply to such “wars”, as defined in Article 1(4) of the Protocol, as fully as they do apply to international armed conflicts. However, for this provision to take effect requires not only that the State party to the “war of national liberation” is a party to the 12 13

Loc. cit. The (very controversial) compromise definition in Art. 1(4) speaks of “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.”

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Protocol: also required is an undertaking, given by the authority representing the people engaged in that “war” by means of a declaration addressed to the Swiss Government as depositary of the Protocol, to apply the Conventions and the Protocol in relation to that “war”. The obligation of both parties to respect the Conventions and Protocol I is therefore triggered, not automatically by the objective situation, but through the voluntary acceptance of the obligation by the authority representing the people. While this may be regarded as according rather too much weight to an act of that authority, the point is that until such time as the undertaking is given, neither the “people” nor its supporters can rightfully claim that the State must recognise the “war” as an event to which the Conventions and Protocol I are fully applicable. An isolated attempt in that direction notwithstanding, Protocol II contains no similar provision: its application theoretically is determined solely by the objective criteria set out in Article 1. In actual fact, a State party to the Protocol may find itself exposed to demands that it apply its provisions even in a situation that can hardly be maintained to meet those criteria. Worse, those who make the demands may at the same time be lending every conceivable support to the adverse party. In this admittedly rather black scenario the very notion of equality of belligerent parties as a basic principle of humanitarian law risks getting completely lost. If, therefore, considerations such as these were at the back of the minds of the Brazilian and Colombian delegations, that would provide an understandable motive for their attempts to set matters right by according the State involved a decisive voice on the matter of application of Protocol II. Another plausible candidate, also in the light of the black scenario of a moment ago, is fear of intervention. Aware that I am now entering upon the terrain of pure speculation, I would not be surprised at all if a strong motive for Latin-American governments to crave for this decisive vote had arisen from their shared many years’ experience with the irrepressible tendency of their big brother in the North to meddle in their affairs. Perhaps more than anything else, it may have been the never-ending story of open or covert operations of agencies such as the U.S. armed forces or the CIA which inspired the tenacious attempts of Brazil, Colombia and others to close at least this gap in their admittedly limited capacity to ward off such undesirable activities. 14 15

Art. 96(3) of Protocol I. At the 1st session of the CDDH, Pakistan introduced an amendment to Art. 1, providing inter alia that: “The armed forces opposing the authorities in power are represented by a responsible authority and declare their intention of observing the humanitarian rules laid down in Article 3, common to the Geneva Conventions, and in the present Protocol.” Text: CDDH/I/26, 11-3-74, Vol. IV 6; introduction: CDDH/I/SR.23, 17-2-75, Vol. VIII p. 215. No other delegation supported this amendment. Intriguingly, the Pakistani delegate did not come back to it either: he may have preferred quietly to prepare for the final, all-embracing amendment to the whole of Protocol II; supra, note 7.

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I hasten to repeat that especially the last-mentioned suggestion is speculation pure and simple. Indeed, this whole section purports to be no more than an attempt to read into the published records of the negotiations on Article 1 of Protocol II, unspoken thoughts and hidden fears that might help understand why so much effort was spent on an initiative that its proponents must have realised was unlikely to be crowned with success. An initiative, moreover, that would have resulted not only in the introduction into treaty law of the customary instrument of recognition of belligerency (an instrument that, although seldom used, harmlessly persists to this day): for all practical purposes, it would have done away with the notion of objective criteria for the determination of the existence of an internal armed conflict, as provided in Article 3 common to the Geneva Conventions of 1949. 4

Colombia in the 1990s

As mentioned in the Introduction, the 1990s saw a radical change in the posture of Colombia in relation to the 1977 Protocols. The change has come about in a climate of violence that does not differ much from what had preceded it: there always are two major guerrilla movements (FARC and ELN) opposing the government armed forces, as well as more or less independent paramilitary groups apparently co-operating with drugs barons and, allegedly, with (lower regions of ) the armed forces. Operations by all of these armed groups often result in acts of utter cruelty and inhumanity. Public opinion continues to react to the violence as it had done before, vacillating constantly between demands for military victory and for negotiated peace. It is, in one word, a climate which, though obviously in great need of an increased respect of basis humanitarian precepts, does not seem particularly favourable to the promotion of such notions. Yet this is precisely what came about, in a sequence of events starting with Colombia’s accession to Protocol I on the 1st of September, 1993, followed by accession to Protocol II on 14 August 1995. To round it all off, on 17 April 1996, Colombia accepted the competence of the International Humanitarian FactFinding Commission. A drastic change indeed, taking into account that it had even chosen not to become a signatory to the Protocols in the twelve-month period set aside for that purpose from 12 December 1977. Needless to say, it was a shift in the political constellation which made all this possible. However, it is neither my purpose nor my competence to enter into the political aspects of these events. Rather, it is of interest to follow the arguments that have been advanced by proponents and opponents of these successive steps, as reflected in the relevant judgements of the Constitutional Court of Colombia.

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1992: The Constitutional Court on Protocol I

According to the Colombian Constitution, when the Government considers becoming party to a treaty, it must submit the treaty to the Congress for its approval. Once this has adopted an Act approving the treaty, it is for the Government to submit both the treaty and the Act to the Constitutional Court for final assessment of their constitutionality. Only with the positive judgement of this supreme body may the President then ratify or accede to the treaty. Pursuant to these provisions, Protocol I together with a Congressional instrument of approval was submitted to the Court, which rendered its judgement on 28 October 1992. After disposing of certain preliminary questions touching upon its competence to examine the constitutionality of international treaties, it expounds its views on the essence of international humanitarian law in relation to the Constitution. Unconditionally accepting the thesis that this body of law has the character of jus cogens, the Court concludes that it represents above all a normative catalogue of absolute and universal validity, not dependent on incorporation in the positive legal order. Moreover, the section of the Constitution on emergency situations justifying exceptional measures expressly provides that the rules of international humanitarian law must be respected at all times. This, the Court holds, reaffirms the automatic incorporation of this body of law into the domestic legal order and its imperative character as jus cogens. 16

17 18

19

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Art. 241(10) (function of the Constitutional Court to decide “definitivamente sobre la exequibilidad de los tratados internacionales y de las leyes que los aprueben”). See also Art. 150(16) (legislative power of Congress), Art. 189(2) (treaty-making power of the President). The present Constitución Política de Colombia dates from 7 July 1991, replacing the old Constitution of 1886. Sentencia C-574/92, not yet in print. The Court had to decide whether it was competent to take cognisance of the texts submitted to it, in view of the fact that the approving instrument emanating from the Congress was the result of a transitional procedure and could be argued not to be in complete accordance with the requirements set out in Art. 241(10). The judgment discusses this under the following headings: (1) nature, specificity and binding force of international humanitarian law; (2) ties between international humanitarian law and the Colombian Constitution, in three phases: the old one of 1886, the Constitutive Assembly, and the new Constitution of 1991. “El derecho internacional humanitario es, ante todo, un catálogo axiológico cuya validez absoluta y universal no depende de su consagración en el ordenamiento positivo.” Art. 214(2): “No podrán suspenderse los derechos humanos ni las libertades fundamentales. En todo caso se respetarán las reglas del derecho internacional humanitario…” “En consecuencia, se acogió la fórmula de la incorporación automática del derecho internacional humanitario al ordenamiento interno nacional, lo cual, por lo demás, es lo congruente con el carácter imperativo que, según ya fue explicado, caracteriza a los principios axiológicos que hacen que este cuerpo normativo integre el ius cogens.”

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What then is the import of a treaty of humanitarian law and, indeed, of ratification of such an instrument? On this, the Court holds that while both the Conventions of 1949 and the two Protocols of 1977 do no more than give expression in writing to principles that already existed in customary international law, formal accession is important because it forestalls any possible controversy about the binding character of international humanitarian law. Note that the Court mentions here Protocol II in one breath with the Conventions and Protocol I, at a time when Protocol II had not even been submitted to its judgement! It may not be too wild a guess to perceive in this slip of the pen (if it was one) an indication of what probably was weighing on its mind all the time, that is, the situation in Colombia with its incessant violence and concomitant urgent need of respect of humanitarian law. Be this as it may, the Court after a (somewhat perfunctory) discussion of specific provisons of Protocol I (which I need not go into here) came to the conclusion that it was in every respect in conformity with the Constitution. 4.2

1995: The Constitutional Court on Protocol II

Just two years later, on 19 December 1994, the Court received a request for the scrutiny of Protocol II, together with the Congressional Act approving it (Ley 171 of 16 December 1994). Its judgement of 18 May 1995 differs markedly from that of 1993: where the earlier judgement had to deal at length with the issue of the Court’s competence to assess the constitutionality of Protocol I and the Congressional instrument accompanying it, the present judgement, free from such concerns, gives ample scope to the voice of officials and representatives of social organisations who spoke for or against the constitutionality of Protocol II. Obviously, the debate about Protocol II, with its applicability in internal armed conflicts, was much closer to Colombian day-to-day reality than Protocol I had ever come.

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(Part V B 2 c) – In a subsequent part of its judgment the Court refutes the dualistic views of experts on constitutional law who assert that to accord direct effect to international humanitarian law amounts to a violation of national sovereignty. And one of the Court’s final conclusions is that: “las reglas del derecho internacional humanitario son hoy – por voluntad expresa del Constituyente – normas obligatorias per se sin ratificación alguna previa o sin expedición de norma reglementaria.” (Part V F) “Los cuatro Convenios de Ginebra de 1949 y sus Protocolos adicionales I y II de 1977 constituyen pura y simplemente, la expresión formal y por escrito, esto es, la codificación de los principios ya existentes en el derecho internacional consuetudinario. Por tanto, la ratificación produce la importante consecuencia de zanjar definitivamente toda controversia que pudiera existir, en torno de la obligatoriedad del derecho internacional humanitario.” (emphasis in original; Part V D). Sentencia C-225/95, drafted by Dr. Alejandro Martínez Caballero as Magistrado Ponente. Like the judgment of 1993, also this is not yet in print. The references in the notes hereafter are to sections of the judgment.

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Governmental Voices

Opening the list of government officials, the Legal Secretary of the Presidency, representing the President as well as the Presidential Advisor for Human Rights and the High Commissioner for Peace, recalls the dictum of the Court in its previous judgement that the Constitution accords the rules of international humanitarian law binding force without need for ratification or promulgation of executive orders. The Congressional approval of Protocol II accordingly serves merely to give effect to the constitutional rule, to incorporate the Protocol into the domestic legislation, and to notify the international community of States that Colombia undertakes to respect and ensure respect of its rules. Broaching an entirely different aspect of the matter, the Secretary emphasises the vital importance the Government attaches to Protocol II in the Colombian context. Not only do its rules serve to protect the non-combatant population: they may contribute to achieving a negotiated solution of the armed conflict. Explaining this point, he states that the Government, having proclaimed its unilateral undertaking to respect and ensure respect of these rules, intends to honour this undertaking by a clearly defined humanitarian policy which aims to protect the civilian population, in particular displaced persons, and to punish those responsible for infractions of international humanitarian law. Protocol II thus becomes a strong social and juridical instrument for the realisation of the Government’s humanitarian policy, among other things, by providing the basis for ad hoc agreements for the observation of humanitarian principles on the road to peace. In the latter part of this important Presidential policy statement, one may recognise the hand of the then High Commissioner for Peace, Dr. Carlos Holmes Trujillo. The Presidential statement received the full support of the national Ombudsman as well as, in a detailed report included further down in the judge-

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“… y al comunicar a la comunidad internacional de estados que Colombia se compromete a respetar y a hacer respetar sus normas.” I-2(1) – The remark is rather surprising, given that in contrast with Protocol I, the CDDH has resisted all attempts to introduce this phrase into Protocol II. At any rate, the phrase obviously signifies no more than a willingness to ensure respect on the domestic level. “Es así como el Protocolo II de 1977 se convierte en un vigoroso instrumento social y juridico para la aplicación práctica de la politica humanitaria anunciada por el gobierno, pues al amparo de sus preceptos y en el escenario del agudo conflicto que afecta a nuestro país, se podrá materializar el primordial objetivo de aliviar los sufrimientos propios de la confrontación y sus secuelas, humanizándola y aportando la urgida viabilidad a la eventual adopción de acuerdos ad-hoc que observen principios humanitarios en el proceso por alcanzar la paz.” I-2(1) The Defensor del Pueblo, who resorts under the Procurador General de la Nación and is elected by the Cámara de Representantes out of a list of three candidates drawn up by the President, promotes and guards over respect for human rights and reports to

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ment, by the Attorney-General. The latter functionary in particular adds some very useful remarks about the possibility of recourse to ad hoc agreements as a means to reinforce a budding confidence between the parties. Of a very different tenor is the joint intervention of the Ministers of Foreign Affairs and Defence. After paying due respect to the constitutionality of Protocol II (though almost by way of lip-service and without a word in support of its potential for the achievement of peace), they emphasise that the provisions in the Protocol preserve the sovereignty of the State, do not imply recognition of belligerency, and prohibit intervention by outside powers. Though forming part of the same Government as the previously mentioned functionaries, their political instincts apparently tended more in the direction of military victory than negotiated peace. Be this as it may, it is of interest to note that in one respect their statement literally reverses the posture of their compatriot at the 1977 session of the CDDH: while the Ambassador on that occasion had attempted to make the application of Protocol II dependent on recognition of belligerency, the Ministers now express satisfaction at the fact that its application does not imply such recognition. 4.2.2

Non-governmental Voices

The next part of the judgement reflects an impressive series of non-governmental voices, with one exception, all in defence of the constitutionality of Protocol II. Underscoring the “supranational” character and binding force of the norms of international humanitarian law, they affirm the absence of a need for express rati-

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Congress about the exercise of his functions; Constitution, Art. 281-284; Ley 24 of 1992. The Procurador General de la Nación is elected by the Senate from a list of three candidates submitted jointly by the President, the Supreme Court and the State Council; Constitution, Art. 275 et seq. As noted in the report: “se trata de una posibilidad juridico-política especialmente útil en contextos de negociaciones de paz, en la medida en que contribuye no sólo a aliviar la suerte de las víctimas de la guerra, sino también a favorecer consensos y acrecentar la confianza recíproca entre los enemigos.” I-2(2) “[Protocol II] no erosiona la soberanía del Estado colombiano, ni implica el reconocimiento de beligerancia a los grupos subversivos, puesto que la aplicación del derecho internacional humanitario no produce ningún efecto sobre el status de las partes en conflicto, tal como lo establece expresamente el articulo 3º común de los Convenios de Ginebra. Además, señalan estos ciudadanos, el articulo 3º del Protocolo salvaguarda de manera amplia la soberanía de los Estados … [Also, Protocol II does not affect] la obligación constitucional del Presidente de la República de conservar en todo el territorio el orden público y restablecerlo donde fuere turbado. Tampoco es, según estos ciudadanos, un instrumento que legitime intervenciones de potencias extranjeras … respetando así los principios constitucionales que rigen las relaciones exteriores de Colombia.” I-2(3)

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fication of the Protocol as well as the complete concordance of its provisions with the Constitution. Of note among these interventions is that by Dr. Ciro Angarita Barón, who in 1993 as Magistrado Ponente had drafted the Court’s judgement on the constitutionality of Protocol I. Broaching the issue of scope of application of Protocol II, Dr. Guillermo Rueda Montaña, President of the Colombian Red Cross, vents his anger at those who, ignorant of its real purpose (which is to enhance the protection of the civilian population) qualify it as an instrument serving the interests of the guerrilla fighters. Nor is it true that (as argued by others) its application is limited to cases of “civil war”: that is just one type of internal armed conflict, and thus to restrict its application deprives the Protocol of much of its raison d’être. Again, while the circumstances typifying a conflict as a civil war may induce third States or the international community to recognise a state of belligerency, neither the adoption nor the application of the Protocol has that result. Approaching the issue of recognition of belligerency from another angle, Monsignor Pedro Rubiano Sáenz, President of the Episcopal Conference of Colombia, argues that already with Article 3 common to the Conventions of 1949, this classical device no longer determines the application of rules of international law to situations of internal armed conflict. Indeed, in his view the whole concept of recognition of belligerency has fallen into desuetude. – This might be a somewhat overhasty conclusion: as noted above, there is nothing against a State formally recognising its internal enemy as a belligerent party, as long as it is clearly understood that application of Article 3 of 1949 or Protocol II of 1977 is not dependent on such a decision. How then to construe the responsibility of insurgents for violations of international humanitarian law? Recognising the importance of the problem, since disregard of the rules by one party entails a lowering of the standard of application of the law, the Colombian section of the Andean Commission of Jurists emphasises that the responsibility of the guerrilla groups for violations of Protocol II follows from the very fact of their politico-military pretensions. Though they may prefer to deny all knowledge of the national laws, they cannot shirk their obligations under customary international humanitarian law, as codified in Protocol II. Indeed, the respective groups have each undertaken to respect the precepts of

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I-3(6). Other papers include those of the Colombian section of the Comisión Andina de Juristas and the Conferencia Episcopal de Colombia. “… sólo la ignorancia ha llevado a ciertos sectores a calificar el protocolo II como ‘Protocolo guerrillero’, expresión que resume el elevado grado de politización que ha tomado la discusión en Colombia.” I-3(1) “Esto significa entonces que la declaratoria de beligerencia es una institución desueta.” I-3(5)

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humanitarian law, and, so these jurists argue, they cannot make the honouring of their undertakings subject to a condition of reciprocity. On the practical level, several interventions draw attention to the situation of civilians who do not participate in the hostilities: they cannot be attacked, must be protected, and may not be subjected to forced displacement. Of course, all of this is a long way from depicting the actual situation in the country. Dr. José Eduardo Umaña Mendoza accordingly suggests that the Court not confine itself to a declaration that Protocol II is in conformity with the Constitution: it should urge the immediate adoption of concrete measures giving effect to its provisions. In a similar vein, the Colombian section of the Andean Commission of Jurists invites the Court to appeal to the Congress and the Minister of Defence, among others, to adjust the existing legislation to the requirements of Protocol II. In line with the Presidential statement, the Colombian Association of Democratic Lawyers perceives a link between Protocol II – the application of which may be conducive to peace – and Article 22 of the Colombian Constitution, which includes peace among the fundamental rights. 34

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“A pesar de que la guerrilla diga por principio desconocer el régimen legal vigente, no puede sustraerse a las normas consuetudinarias humanitarias internacionales, expresión de la cual es la codificación realizada en el Protocolo II. Con todo, los distintos grupos guerrilleros han aceptado expresamente en distintas occasiones someterse a los preceptos del derecho humanitario. Ello debe hacerse de manera incondicional, es decir, sin evitar las obligaciones que se derivan de la totalidad de su contenido, sin acudir a interpretaciones ajenas al sentido que la ha ido dando su aplicación universal, y sin sujetar sus deberes al respeto por el contrario de las normas humanitarias.” I-3(4) As held by Dr. Rueda: “… no pueden ser objeto de ataque militar, por cuanto no son en sentido estricto combatientes, ‘las personas que contribuyen ideológica y políticamente a la causa de las organizaciones alzadas en armas, ni aquellos que perteneciendo a la Fuerza Pública desempeñan tareas que no contribuyen directamente a la ventaja militar, como puede ser el caso del soldado que adelanta una campaña ecológica o simplemente se encuentra de licencia’.” I-3(1) – Even though the specific line he draws between civilians and combatants may not be accepted by all experts, his remarks on that score were (and continue to be) pertinent in the existing situation. The paper by Monsignor Rubiano Sáenz, I-3(5), provides statistics about the gigantesque proportions forced displacement has assumed in Colombia. The Court “debe abogar por concreciones inmediatas en la esfera legal y de la administración, para que el Protocolo II no quede en el plano de los tantos instrumentos que no realizan los principios constitucionales al no estar reglados, dotados de posibilidad con mecanismos ciertos que activen su naturaleza.” I-3(7) This remark was probably inspired by criticism of the defective prosecution of members of the armed forces for alleged encroachments of humanitarian law. See also infra, text at note 70. “La paz es un derecho y un deber de obligatorio cumplimiento.” – Referring to the scourge of violence in Colombia in the face of which the Government is incapable

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Amidst this broad support of Protocol II, one lone voice is heard in dissent. Mr Fernando Antonio Vargas, President of the Comité Nacional de Víctimas de la Guerrilla – VIDA, denounces three provisions of the Protocol as unconstitutional. Article 1, on scope of application, erodes the sovereignty of the State: in accepting the existence of internal armed conflicts it lends legitimacy to irregular armed groups who seek to destroy the democratic system. Article 6(5), with its call for amnesty at the end of hostilities, implies an unacceptable level of impunity and amounts to a negation of justice. And Article 13, though purporting to protect the civilian population, does not require the irregular armed groups to distinguish themselves, thus enabling them to use the population as a shield and making it suffer the consequences of the confrontation. 4.2.3

The Court’s Judgement

At long last speaking with its own voice, and after rapidly disposing of the formal aspects of the issue of constitutionality of Protocol II and Ley 171, the Court first elaborates its views on the notion of international humanitarian law. It understands the term as encompassing both the rules for the protection of war victims (the law of Geneva) and the rules on combat or law of The Hague. As noted in the Court’s 1992 judgement, while these two branches of the law might have had a separate existence in the past, Protocol I of 1977 comprises and mixes rules of both types. The term “humanitarian law” in the Constitution must be understood in the same broad sense. Then, international humanitarian law belongs to the customary law of civilised peoples; most of the treaties of humanitarian law simply codify existing norms, and these have the character of jus cogens. Its rules are therefore eo ipso binding on States and (non-state) belligerent parties, even if they have not accepted the treaties. Respect for international humanitarian law moreover is a matter of international concern, as evidenced, the Court specifies, by the crea-

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to protect people in life, honour and property, Dr Javier Henao Hidrón, editor of the 12th edition of the Constitución Política de Colombia (1996), explains that the Article represents an act of faith in peace on the part of the constituent assembly. Art. 6(5) reads as follows: “At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.” On the issue of amnesty, see infra, text at note 59. “Esto explica que las normas humanitarias sean obligatorias para los Estados y las partes en conflicto, incluso si éstos no han aprobado los tratados respectivos, por cuanto la imperatividad de esta normatividad no deriva del consentimiento de los Estados sino de su carácter consuetudinario.” II-7

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tion in 1993 of an international tribunal to deal with the crimes committed in the former Yugoslavia. With maximum emphasis, the Court repeats that international humanitarian law binds all the parties to an armed conflict, not just the armed forces of those States that have ratified the respective treaties. No irregular group or army can legitimately consider itself relieved of the obligation to respect the minimum standards of humanity because it has not subscribed to those treaties: once again, the normative force of humanitarian law results from its universal acceptance by civilised peoples and from the self-evident humanitarian character of the values enshrined in the treaties. Nor is there room here for a rule of reciprocity: the rules of humanitarian law exist not for the benefit of those taking part in the armed conflict but of the non-combatant population and the victims of the conflict. Indeed, the Court adds, Colombia was one of the first independent nations to accept the principle of non-reciprocity in respect of obligations of a humanitarian nature: as long ago

42

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“El respeto del derecho internacional humanitario es un asunto que interesa a la comunidad internacional como tal, como lo demuestra la creación, el 17 de noviembre de 1993, en la Haya, de un tribunal internacional para juzgar los crímenes cometidos en la guerra civil en la antigua Yugoslavia.” II-8 – Note that the Court indicates the situation in the former Yugoslavia as a “civil war”! “Todo lo anterior permite entonces concluir que la obligatoriedad del derecho internacional humanitario se impone a todas las partes que participen en un conflicto armado, y no solo a las Fuerzas Armadas de aquellos Estados que hayan ratificado los respectivos tratados. No es pues legítimo que un actor armado irregular, o una fuerza armada estatal, consideren que no tienen que respetar en un conflicto armado las normas mínimas de humanidad, por no haber suscrito estos actores los convenios internacionales respectivos, puesto que – se repite – la fuerza normativa del derecho internacional humanitario deriva de la universal aceptación de sus contenidos normativos por los pueblos civilizados y de la evidencia de los valores de humanidad que estos instrumentos internacionales recogenote Todos los actores armados, estatales o no estatales, están entonces obligados a respetar estas normas que consagran aquellos principios mínimos de humanidad que no pueden ser derogados ni siquiera en las peores situaciones de conflicto armado.” II-8 “Tampoco puede uno de los actores armados alegar el incumplimiento del derecho humanitario por su contrincante con el fin de excusar sus propias violaciones de estas normas, ya que las limitaciones a los combatientes se imponen en beneficio de la persona humana. Por eso, este derecho tiene la particularidad de que sus reglas constituyen garantías inalienables estructuradas de manera singular: se imponen obligaciones a los actores armados, en beneficio no propio sino de terceros: la población no combatiente y las víctimas de ese enfrentamiento bélico. Ello explica que la obligación humanitaria no se funde en la reciprocidad, pues ella es exigible para cada una de las partes, sin hallarse subordinada a su cumplimiento correlativo por la otra parte, puesto que el titular de tales garantías es el tercero no combatiente, y no las partes en conflicto.” II-9

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as 25 April 1821, Simón Bolívar impressed this principle on his soldiers in relation to an agreement he had concluded with the Spanish General Morillo. The Court next points (as it had done in 1992) to Article 214 of the Constitution, paragraph 2 of which not only declares the fundamental human rights non-derogable in time of emergency but adds that on top of that, the rules of international humanitarian law must be respected in all circumstances. These rules, it argues, predominate in the internal legal order and actually form part of a “bloc of constitutionality”, which comprises those rules which, whether formally articulated in the Constitution or not, are used as parameters to test the constitutionality of the laws. Hence the need for the State to adapt its legislation to these rules, enabling their actual implementation. With this last remark, the Court affirms a point made earlier by the Colombian section of the Andean Commission of Jurists. Yet where the Jurists had specifically pointed to the Congress and the Minister of Defence as the organs that had a task awaiting them in this regard, the Court rather more cautiously confines itself to reaffirming that “the State” has such an obligation. Broaching as the next topic the relations between Protocol II, common Article 3 and Colombian sovereignty, the Court refers to the disclaimer in common Article 3 to the effect that its application does not affect the legal status of the parties to the conflict. In 1949, it notes, this marked a veritable revolution. While before that date, it was often argued that the law of armed conflict became operative in an armed conflict only through a recognition of belligerency, either by the State involved or by third States, with the Conventions of 1949 a rigorous distinction has been accepted between the notions of declaration of belligerency and application of humanitarian law. Protocol II therefore neither violates Colombian sovereignty nor does it imply a recognition of belligerency of the insurgents. In this context, the Court discusses the possibility, referred to in common Article 3, for the parties to an internal armed conflict to conclude special agreements. Even with Protocol II, such special agreements may serve a perfectly reasonable political goal. The effective implementation of international humani45 46

47

“Aun cuando nuestros enemigos los quebranten, nosotros debemos cumplirlos, para que la gloria de Colombia no se mancille con sangre.” II-9 “… el bloque de constitucionalidad está comuesto por aquellas normas y principios que, sin aparecer formalmente en el articulado del texto constitucional, son utilizados como parámetros del control de constitucionalidad de las leyes, por quanto han sido normativamente integrados a la Constitución, por diversas vías y por mandato de la propia Constitución.” “Como es obvio, la imperatividad de las normas humanitarias y su integración en el bloque de constitucionalidad implica que el Estado colombiano debe adaptar las normas de inferior jerarquía del orden jurídico interno a los contenidos del derecho internacional humanitario, con el fin de potenciar la realización material de tales valores.” II-12

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tarian law depends in large measure on the parties’ real and expressed will to respect it. Not that their obligations are subject to reciprocity: the existence of concordant undertakings is simply politically desirable because it may result in gradually increased respect of the rules of the Protocol. On these grounds, the Court favours the conclusion of special agreements between the parties, which reinforce their undertakings and may also enable the putting in motion of mechanisms of verification. Protocol II, and international humanitarian law in general, serve to “humanise” the armed conflict. The Court emphasises that this by no means implies a legitimation of internal armed conflicts nor of the recourse to arms by irregular armed groups, as one intervenor [i.e., Mr Fernando Antonio Vargas] had wrongly sustained. In effect, the Government retains its full responsibility to preserve public order and guarantee the peaceful existence of the population. What “humanising the war” really refers to is the special link of humanitarian law with the search for peace. Here, the Court quotes both Kant’s admonition that war should be waged in such a fashion that it remains possible to return from that “state of nature” to the “state of law” which is peace, and President Lincoln who in 1863, during the Civil War issued to his troops an order usually referred to as the Lieber Code and Article 16 of which declares that “military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.” In this respect too, therefore, Protocol II is entirely in conformity with the Colombian Constitution, Article 22 of which includes peace among the fundamental rights. Protocol II may not contain all the rules one might wish, for instance on the protection of the civilian population or on the conduct of hostilities. But the Court rejects the conclusion that anything not expressly prohibited is permitted: such a conclusion would go against the Martens clause as included in the Preamble to the Protocol. Apart from that, the Court considers those rules of other treaties of humanitarian law that are compatible with the nature of internal armed conflict applicable in such a conflict as well, since – as noted before – they merely give expression to customary norms of jus cogens, which are eo ipso incorporated in the Colombian legal order. Here the Court seeks support in a declaration adopted in 1990 by the Council of the International Institute of Humanitarian Law in a meeting at Taormina, Italy. The declaration asserts the 48

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“Sin embargo, parece deseable políticamente que existas esos compromisos recíprocos, ya que de esa manera se asegura una mayor aplicación progresiva de las normas humanitarias del Protocolo II. En tal contexto, la realización de los acuerdos especiales puede fortalecer esos compromisos entre las partes y favorecer la puesta en marcha de mecanismos de verificación, que logren, en la práctica, un creciente cumplimiento de las obligaciones humanitarias por las partes enfrentadas.” II-17 The last paragraph of the Preamble recalls that “in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience.”

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applicability to internal armed conflicts of those rules on the conduct of hostilities which, in accordance with the principle of proportionality, limit the right of parties to choose means of warfare, so as to avoid unnecessary suffering. Embarking next on a chapter-by-chapter analysis of Protocol II, the Court covers a great many points of direct relevance in the Colombian situation. Selecting a few items from this rich menu, I mention first the issue of scope of application. Relying on the constitutional rule that international humanitarian law must be respected at all times, the Court holds that application of Protocol II does not require a prior determination that the situation meets all the criteria spelled out in Article 1(1). Nor can the exception in paragraph 2 of “situations of internal disturbances and tensions … as not being armed conflicts,” alter its judgement: while that may be of interest on the international plane in connexion with the international responsibilities of Colombia, on the internal plane the constitutional rule predominates. Then, the Court emphasises the vital importance in the Colombian context of the principles of distinction between combatants and civilians and of protection of the civilian population, given the alarming statistics, for instance, on forcibly displaced persons: as reported by the Colombian Episcopacy, they would number more than half a million.The principles apply in internal armed conflicts in the same manner and on the same grounds as they do in international ones. As the Court notes, the principle of distinction is implicit in the first paragraph of Article 4, which guarantees humane treatment in all circumstances to “[a]ll persons who do not take a direct part or who have ceased to take part in hostilities.” Admittedly, as noted by the lone dissenter among the non-governmental representatives, Protocol II does not indicate by what means the distinction between “combatants” and “civilians” is to be made; a silence from which that gentleman had concluded that the Protocol enables the irregular forces to “use the population as a shield and make it suffer the consequences of the confrontation.” The Court refutes both points: for means of distinction one may consult the relevant provisions of Protocol I; and the principles of distinction and protection specifically forbid the parties to the conflict to use the civilian population with a view to obtaining a military advantage.

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Declaration of 7 April 1990, published in the International Review of the Red Cross of that year. For the essence of Art. 1, including the full text of para. 2, see supra, text at note 13. Art. 4, “Fundamental guarantees”, opens Part II (“Humane Treatment”) of the Protocol. The Court refers in particular to Articles 43, 48 and 50. A conclusion which the Court obviously draws from Protocol I rather than from the text of Protocol II, which does not refer to such notions as “military advantage” or (with one accidental exception) “military objective”.

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Article 4, with its list of fundamental guarantees for the protection of the persons indicated above, gives the Court occasion to broach yet another issue of cardinal importance: that of military obedience. It quotes large parts of the Article, such as (my selection) the prohibitions “to order that there shall be no survivors” and of acts against the persons mentioned above that amount to “violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture”, “acts of terrorism”, “rape”, and “threats to commit any of the foregoing acts”. These prohibitions, the Court continues, are evidently linked with the constitutional values of protection of life and the dignity and integrity of persons, and therefore have an impact on the military principle of “due obedience” as embodied in Article 91(2) of the Constitution. Recalling that on an earlier occasion it had already drawn a distinction between the obedience a subaltern is due to observe for the sake of discipline, and obedience that, exceeding the limits of a reasonable order, is tantamount to a blind following of the instructions given by a superior, it now concludes that “due military obedience” cannot be invoked to justify acts that are manifestly detrimental to human rights, notably the dignity, life and integrity of persons. A matter of great practical importance in the administration of military justice in Colombia, to which I shall revert in the concluding section of this paper. As a last point, I mention the clause on amnesty in Article 6(5); not just because the “lone dissenter” had denounced it as unconstitutional, but in view of its general interest. The Court notes that a comparable provision does not figure in Protocol I, and for good reason. In an international armed conflict, a soldier 55 56

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II-35 “Estas prohibiciones del derecho internacional humanitario, por su vínculo evidente y directo con la protección a la vida, la dignidad y la integridad de las personas, tienen además una consecuencia constitucional de gran trascendencia, puesto que ellas implican una relativización, en función de estos trascendentales valores constitucionales, del principio militar de obediencia debida consagrado, por el inciso segundo del artículo 91 de la Carta.” II-36 – For the text of Art. 91, see infra, note 73. T-409/92, 8 June 1992; Magistrado Ponente José Gregorio Hernández Galindo. “… una conclusión se impone: no se puede invocar la obediencia militar debida para justificar la comisión de conductas que sean manifiestamente lesivas de los derechos humanos, y en particular de la dignidad, la vida y la integridad de las personas, como los homocidios fuera de combate, la imposición de penas sin juicio imparcial previo, las torturas, las mutilaciones o los tratos crueles y degradantes.” II-36 – The Court reinforces its conclusion by pointing to the 1984 UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, in force for Colombia since 7 Jan. 1988, Art. 2(3) of which provides that a superior order cannot be invoked to justify torture. “At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.”

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who falls into enemy hands may be detained as a prisoner of war but cannot be punished for the fact that he took part in the fighting. (He may, on the other hand, be put on trial for any war crimes he might have committed prior to capture.) In contrast, prisoner-of-war status does not obtain in an internal armed conflict, and captured participants in hostilities may be punished for having taken up arms, specifically, for crimes such as rebellion or insurrection. This explains the suggested “broadest possible amnesty”, as a measure which after the cessation of hostilities may contribute to national reconciliation. As the Court emphasises, the State is under no obligation to grant amnesty, let alone that it would need to encompass all crimes committed in the course of the armed conflict. Obviously, the suggestion of amnesty in Protocol II is specifically meant for (pure or relative) political crimes, since those crimes typically would have been committed “for reasons related to the armed conflict”. It would be for the State to determine which crimes fall under that heading, once the time had come to consider the convenience of amnesty in relation with the promotion of national reconciliation. The Court notes that the option of amnesty for political crimes is perfectly compatible with the Constitution, Article 150(17) of which includes the granting of amnesty for political crimes among the powers of Congress. This possibility of amnesty for political crimes, granted on grounds of public convenience, actually corresponds with a long-standing constitutional tradition in Colombia, dating back to the Constitution of 1821. All of this brings the Constitutional Court to these conclusions: Protocol II is in conformity with the values, principles, rights and duties enshrined in the Constitution, grounds on which the Court gives a positive verdict in the operative part of the judgement. It deems the approval and ratification of the Protocol no more than a fulfilment by the authorities of their respective mandates under the Constitution. Yet, as specified in Article 23 of the Protocol, it will enter into force as treaty law only six months after its ratification by the President. That does not however imply a licence for the parties to the armed conflict in Colombia to disregard their humanitarian obligations in the meantime: the Court reiterates one last time that as provided in Article 214(2) of the Constitution, the rules of international humanitarian law must be respected at all times; and as noted earlier both in its judgement of 1992 and in the present one, “the rules of international humanitarian law today are – by virtue of the express will of the 60

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In effect, Art. 43(2) of Protocol I provides expressly that “[m]embers of the armed forces of a Party to a conflict […] are combatants, that is to say, they have the right to participate directly in hostilities.” Art. 150(17): “Conceder, por mayoría de los dos tercios de los votos de los miembros de una y otra cámara y por graves motivos de conveniencia pública, amnistías o indultos generales por delitos políticos. En caso de que los favorecidos fueren eximidos de la responsabilidad civil respecto de particulares, el Estado quedará obligado a las indemnizaciones a que hubiere lugar.”

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Constitutive Assembly – binding norms per se, even without ratification or the promulgation of executive orders.” 4.2.4 1996: Official Recognition of the Competence of the International Humanitarian Fact-Finding Commission On 16 February 1996, President Ernesto Samper Pizano delivered a statement marking the entry into force of Protocol II for Colombia. The statement emphasised the importance of the occasion and set forth the policy of the Government with regard to the promotion of peace and respect for international humanitarian law. Under the latter heading, the President indicated that he had invited the Minister of Foreign Affairs to prepare a document on the recognition of the competence of the International Fact-Finding Commission established pursuant to Article 90 of Protocol I. It may be useful to note here that whereas this Commission owes its existence to Protocol I applicable in situations of international armed conflict, it has in the course of its first five years of actual existence (1991-1996) determined and publicly announced that it considers itself equally competent to perform its functions in situations of internal armed conflict. As is obvious from the Presidential statement, the Colombian Government was aware of this fact. Nor could it very well have been otherwise: the present author had even before Colombia’s accession to Protocol II, in April 1995, visited the country on the invitation of the High Commissioner for Peace, to help explain the Protocol to the authorities, other audiences of interested persons and the media; and in the course of those meetings, the possibility of a role for the Fact-Finding Commission in promoting respect for the Protocol had been broached at all levels and welcomed by many. To actually perform its functions, the Commission would however require an invitation by one party and the consent of the other. The paragraph in the statement of February 1996 indicated that the Government was seriously considering the possibility of involvement of the 62

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For reasons of clarity, the Commission has inserted “Humanitarian” in its name, at the same time leaving out the cumbersome reference to Art. 90 of Protocol I. It has 15 members, elected for a 5-year period by the States parties to Protocol I which have declared to accept the competence of the Commission pursuant to paragraph 2 of the Article; the first elections took place in 1991 and the second in 1996. The present author is a member of the Commission since 1991 and, since 1997, its President. As defined in Art. 90(2)(c), the Commission is competent to “enquire into any facts alleged to be a … serious violation of the Conventions or of this Protocol [and to] facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol.” While under the terms of Art. 2 this competence regards in particular cases arising between States that have declared to accept the Commission’s competence, para 2(d) adds that “[i]n other situations, the Commission shall institute an enquiry at the request of a Party to the conflict only with the consent of the other Party or Parties concerned.”

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Commission. Recognition of its competence, as provided in Article 90(2)(a) of Protocol I, would be a step in that direction. But could the Commission’s claim of competence in internal armed conflicts really be upheld? This point is forcefully argued in a report to the President, written by the Advisor on Human Rights. In a strictly formal sense, he writes, and taking Protocol I as an international legal code isolated from the context of international humanitarian law, the competence of the Commission is limited by the scope of application of that Protocol, i.e., to international armed conflicts only (including, he notes, wars of national liberation). However, the rules on scope of application in both Protocol I and Protocol II are no strait jackets limiting the whole of humanitarian law in its application; on the contrary, they merely indicate the minimum of humanitarian rules the parties to either type of armed conflict are bound to take into account in their warlike activities. As explained by the Constitutonal Court, international humanitarian law is a body of imperative norms that are valid everywhere and at any time. In Colombia, the parties are consequently obliged unilaterally to comply with the provisions of Protocol II, and moreover, as specified in Article 3 common to the Conventions of 1949, to attempt to bring into force further provisions of humanitarian law, especially those for the protection of the civilian population. In this order of ideas, the Presidential Advisor on Human Rights continues, the Commission may indeed function in an internal armed conflict, both in view of the material sphere of application of Protocol II as well as, pursuant to common Article 3, through an ad hoc agreement between the parties. The Constitutional Court – he recalls – states in its judgement on the constitutionality of Protocol II that in the context of such an armed conflict, ad hoc agreements may serve a perfectly reasonable political goal, since the practical effect of international humanitarian law actually depends on whether there exists a real, expressed will of the parties to respect it. Rounding off his report with a detailed analysis of the structure, competence and procedure of the Commission, the Advisor concludes that to create an opening for recourse to that body in the context of the existing conflict, the Government should make the declaration recognising its competence as provided in Article 90(2)(a) of Protocol I. This is exactly what happened next: on 17 April 1996, just three months after the statement of intention by the President, his official declaration that Colombia recognises the competence of the International Humanitarian Fact-Finding Commission was deposited with the Swiss Federal Department.

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Supra, note 48.

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Concluding Remarks

The sequence of events related above, from the CDDH of the 1970s to Colombia in the 1990s, leads me to the first comment that a change of attitude could hardly have been more radical. The step from Colombia’s initial refusal even to sign the Protocols of 1977 to its unqualified adherence to these instruments, completed with acceptance of the competence of the International Humanitarian FactFinding Commission, surely qualifies as a quantum jump. As noted in the introductory section, this quantum jump was made possible by political developments. Even though this is not my field of competence, some tentative conclusions are in order. A quite general comment is that whereas the initial non-signature plausibly was caused, in the case of Protocol I, by a lack of interest, and in respect of Protocol II, by concern of the authorities of a war-torn country at the potential international repercussions of formal acceptance of that instrument, the recent broadly supported and unconditional acceptance, notably, of Protocol II goes back first and foremost to internal factors making the express introduction of the precepts of international humanitarian law into the domestic legal order an urgent necessity. These factors lay not exclusively with the Government, nor do they appear to be solely connected with the moral content of humanitarian law as a venue to less cruel warfare (although there is widespread disgust at the current practices of some of the parties). Rather, a feeling of war-weariness appears to pervade the country, resulting in a general desire for peace. And, as I was able to note in the course of my “propaganda tour” of April 1995, international humanitarian law and in particular Protocolo Dos is widely perceived as a device that might help bring this about; for the more sophisticated members of the public: because even a modest step toward implementation of its rules could have the effect of a “confidence-building measure” (to borrow a term from the Cold-War period). Obviously, these are precisely the high expectations the authorities and, with them, the non-governmental organisations, the Constitutional Court and, indeed, the Constitution itself are entertaining in respect of international humanitarian law. That on this road to peace, the conduct of hostilities might become perceivably less abhorrent is all for the better and, indeed, may restore confidence, if only in the possibility of a return to normal life. I referred earlier to Article 22 of the Constitution, which includes peace among the fundamental rights. This provision too was written at a time when peace was far off and violence rampant. As the commentator notes, the right was included as an act of faith in peace, and conceived as an obligation of result.

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Supra, note 39. “Sometida Colombia en las últimas décadas al flagelo de la violencia, ante el cual las autoridades resultaron incapaces de proteger a las personas ‘en su vida, honra y

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Little does it matter in this light that some of the theses propounded so forcefully by the Constitutional Court may be considered rather daring. Not all governments, for instance, may share the vision of international humanitarian law as an undivided whole of a higher order, indeed of jus cogens, automatically and integrally applicable in the domestic legal order. The Court itself, for that matter, is realistic enough to add that, of course, the conclusion of ad hoc agreements would be very helpful to put (parts of ) this whole into effect. To put it differently, the thesis of automatic application of international humanitarian law to all the warring parties in Colombia – including the armed forces, armed elements of the police, the two guerrilla movements (FARC and ELN) and the paramilitary – may be very promising, but then, “promising” in a strictly literal sense. For international humanitarian law to become reality requires implementation, on the domestic level in the first place. In respect of internal armed conflict, Article 3 common to the 1949 Conventions indicates “each Party to the conflict” as “bound to apply” its provisions. Protocol II adds, by way of appeal “to whom it may concern”, that it “shall be disseminated as widely as possible.” More specifically, resolutions of the XXth International Red Cross Conference and of the UN General Assembly mention beside governments, “all other authorities responsible for action in armed conflicts” as the ones bound to implement the rules of humanitarian law. And, last but not least, Protocol II includes among the determinants for its application that the “dissident” armed groups “exercise such control over a part of [the territory of the State] as to enable them … to implement this Protocol.” Capability to implement surely must imply an obligation to act accordingly! And the same obviously applies to the authorities in power. These authorities, together with the Colombian Red Cross and with the much appreciated assistance of the ICRC, have embarked on a campaign for the dissemination of humanitarian law among the armed forces as well as to the civilian population throughout the country. (By way of anecdote, it may be added

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bienes’, el constituyente hace en este artículo un acto de fe en la paz, concebida como un derecho y un deber … de obligatorio cumplimiento.” The International Court of Justice in its Advisory Opinion of 8 July 1996 on the Legality of the Threat or Use of Nuclear Weapons, para. 83, sees “no need” to pronounce on the question, raised in the proceedings, whether the principles and rules of humanitarian law are part of jus cogens as defined in Art. 53 of the Vienna Convention on the Law of Treaties. (At the moment of writing, the Opinion is not yet in print). Res. XXVIII of the XXth IRRC, Vienna, 1965: “solemnly declares that all Governments and other authorities responsible for action in armed conflicts should conform…” D. Schindler & J. Toman, The Laws of Armed Conflicts: a Collection of Conventions, Resolutions and other Documents, 3rd ed. (1988) 261. Res. 2444 (XXIII), adopted 19-12-68: “Affirms [the IRRC Res.] which laid down, inter alia, the following principles for observance by all governmental and other authorities responsible for action in armed conflicts…” ibid., 263.

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that in 1996, the commander of the paramilitary – not, for sure, a part of the governmental armed forces – was assigned an expert lawyer to advise him on matters of international humanitarian law; as far as known to me, without apparent effect, given the regular news items about wanton killings, usually by the chopping off of heads of random victims: sheer acts of terror against the civilian population, one would think.) Where prevention of violations fails, repression must follow. In this regard, it is of interest to note that the local offices of the Ombudsman routinely receive and transmit to the competent judicial authorities, individual complaints about violations of humanitarian law, whether alleged to have been committed by members of the armed forces, of the guerrilla movements, or of the paramilitary. So far, so good; but what about prosecution of serious violations that, either in this or any other way, have come to the notice of the judicial authorities? The main problem in bringing members of the irregular forces to trial may be of a practical order: it is the need to apprehend them first. Once that hurdle taken, the “responsibility of the government … to maintain or re-establish law and order” (in the terms of Article 3(2) of Protocol II) takes over and the trial of these accused may proceed according to schedule. In contrast, while members of the armed forces may be more readily available, their effective prosecution often appears to run into serious difficulties, leading to feelings of dissatisfaction among the general public. The matter being complex enough to deserve a separate study, I confine myself to a few notes. There is first the matter of distribution of jurisdiction. Article 221 of the Constitution allots to the military courts, jurisdiction over service related offences by members of the armed forces, leaving jurisdiction over non-service related offences to the civilian courts. This is bound to lead to disputes over the interpretation of the term “service related offence”, and disappointment at the outcome of the relevant procedure before the competent superior judicial body may be a first cause of dissatisfaction with the judicial system. Once seised of a case, it is for the military judicial authorities to determine how to handle it: whether to put the accused on trial, what punishment if any to mete out and whether and how to execute the sentence. Unfortunately, the net result of all these deliberations in many instances appears to be hardly distinguishable from impunity, effectively protecting the accused from the consequences of the outrages imputed to him: an outcome that leads to ever stronger protests by human rights groups, both within and outside the country. 70 71

These are the problems referred to in note 38, supra. “De los delitos cometidos por los miembros de la fuerza pública en servicio activo, y en relación con el mismo servicio, conocerán las cortes marciales o tribunales militares, con arreglo a las prescripciones del Código Penal Militar. Tales cortes o tribunales estarán integrados por miembros de la fuerza pública en servicio activo o en retiro.”

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Of crucial importance in the whole procedure is the issue of superior orders. Article 91 of the Constitution, copying word-for-word the identical rule in the old Constitution of 1886, provides in paragraph 1 that in the event of a manifest infraction of a constitutional rule to the detriment of any person, the fact that the perpetrator acted in execution of a superior order does not exempt him of responsibility. Were it not for its old age, this rule could be taken for an echo of the principle of individual responsibility recognised since the Nuremberg Tribunal. It then comes as a disagreeable surprise to note that paragraph 2 exempts the military from the rule, adding that in their case the superior who gave the order bears sole responsibility. What are we to make of this: does Article 91 of the Constitution require us to interpret the “due obedience” of the military subordinate as “blind obedience”? As noted above, the Constitutional Court had already twice, in judgements of 1992 and 1995, rejected this construction as unconstitutional. But there remained Article 15 of the Presidential Decree on military discipline, issued in 1989 (one year, that is, after the entry into force for Colombia of the 1984 UN Convention against Torture). As-it-were by way of interpretation of Article 91, its first paragraph provides that responsibility for every military order lies with the superior, not the subordinate. Paragraph 2 adds that if a subaltern realises that execution of an order will manifestly imply (among other things) the commission of a crime, he must put this concern to his superior; if the latter insists and if that insistence is confirmed in writing, the subaltern is obliged to execute the order. A system the practicality of which in combat situations one might doubt. Much more serious, Article 15 was challenged as unconstitutional by the national Ombudsman, Dr. Jaime Córdoba Triviño, in a case decided by the

72

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Charter of the International Military Tribunal, Art. 8: “The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigating of punishment if the Tribunal determines that justice so requires.” The Charter is an Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals, signed at London on 8 Aug. 1945, reprinted in Schindler & Toman, op. cit. note 68, 911. “En caso de infracción manifesta de un precepto constitucional en detrimento de alguna persona, el mandato superior no exime de responsabilidad al agente que lo ejecuta. Los militares en servicio quedan exceptuados de esta disposición. Respecto de ellos, la responsabilidad recaerá únicamente en el superior que da la orden.” Supra, note 58. Decree No. 0085 “por el cual se reforma el Reglamento de Régimen Disciplinario para las Fuerzas Militares,” Art. 15: “La responsabilidad de toda orden militar recae en quien la emite y no en quien la ejecuta. Cuando el subalterno que la recibe advierta que de su ejecución puede derivarse manifiestamente la comisión de un delito, acto contra el honor militar o falta constitutiva de causal de mala conducta, debe exponerlo así al superior. Si este insiste, el subalterno está obligado a cumplirla previa confirmación por escrito.”

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Constitutional Court on 4 December 1995. Positing the principle that “due obedience” covers only “legitimate” orders, the Ombudsman argued that this principle is violated both by the reference in the first paragraph to every order and by the rule in the second to the effect that insistence by the superior overrides the concern of the subordinate. Supporting his request but on radically different grounds, the commander-in-chief of the armed forces together with the army, navy and airforce commanders argued that Article 15 violates Articles 91 and 219 of the Constitution – the former with its plain rule on non-responsibility of the military subaltern and the latter providing that the armed forces are not a deliberative body. For them, apparently, “due obedience” was just an unnecessarily complicated manner of saying “obedience”. The Court could not very well accept the generals’ brand of “due obedience”, nor could it reject their thesis out of hand. Rather, it develops an argument primarily based on the notion (utilised already in its earlier judgements) of “bloc of constitutionality”, as the set of norms that must be deemed incorporated into the Constitution. For the purposes of the case in hand, the Court defines it as encompassing: (1) the Constitution itself, (2) international humanitarian law, and (3) the statute law on time of emergency which, as required by Article 214(2) of the Constitution regulates the powers of the Government during such a period and establishes judicial controls and guarantees for the protection of the fundamental rights and freedoms, in accordance with the international treaties (Law 137 of 1994). This bloc, it holds, provides the yardstick against which Article 15 must be measured. Applying this yardstick (in a fascinating discourse for which space is lacking here) the Court concludes that if taken in an absolute sense, the rule of responsibility in Article 15 violates the “bloc of constitutionality”, implying as it does blind obedience and unconditional impunity of the subaltern and turning him, as a passive instrument of arbitrary acts, into the most dangerous element in society. In particular, the absolutist interpretation runs counter to the Constitution (which cannot be deemed to condone a construction containing the germ of its own destruction) and international humanitarian law (notably the two Protocols, the Torture Convention and the Nuremberg precedent). Grounds for the Court to conclude that the first paragraph of Article 15, if interpreted in an absolute sense, is in breach of the “bloc of constitutionality”. In consequence, it declares that it is … okay!! on the understanding, that is, that military orders which imply a violation of the intangible and non-derogable fundamental rights of human dignity enumerated in Article 4 of the Statute Law 137 of 1994 cannot be exe-

76 77

Sentencia C–578/95, drafted by Dr. Eduardo Cifuentes Muñoz as Magistrado Ponente; not yet in print. Judgment, Part III, section 3.

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cuted and, if they are, cannot be advanced as grounds exempting from responsibility. It cost the Court far less words to determine that the second paragraph of Article 15, with its system of objection followed by insistence confirmed in writing followed by execution, is okay too, since it does no more than add a procedure prior to execution of the order and has no bearing on the question of ultimate responsibility. Its final conclusion is that Article 15 as a whole is in conformity with the Constitution provided that it is interpreted in the sense as indicated a moment ago. This much is clear: with its choice for “thinking” instead of “blind” obedience of the military and against impunity for the subaltern who carries out an order in violation of a rule of the “bloc of constitutionality”, including international humanitarian law and fundamental rights and freedoms, the Court has authoritatively interpreted not only Article 15 of the Presidential Decree of 1989 but Article 91 of the Constitution as well. It is now beyond doubt what the law is. It just remains for the competent authorities to issue the right instructions for its application. One last question: What has become of the suggestion of special or ad hoc agreements, to be concluded between the Government on the one side and one or more dissident groups on the other, acting as a means to increase the level of respect for the rules of international humanitarian law and, at the same time, as a sort of confidence-building measures conducive to the promotion of peace? Up to the moment of writing (August 1997): nothing. That is to say, plans to this effect have been laid, texts drafted and discussions held, including with representatives of groups on the other side where a readiness to participate in such agreements had been shown to exist. For the moment, the considerable complications of such an exercise (such as the many parties involved, both on the side of the authorities and in the field, and their often radically different inclinations and interests) have prevented these laudable endeavours to be crowned with success. In sum, there is progress in the Colombian efforts to improve the state of implementation of international humanitarian law. Far from suggesting the notion of a quantum jump, the progress is agonisingly slow, at times barely noticeable, and occasionally interrupted by veritable setbacks. Yet, absent a miracle, a higher speed could hardly have been expected in a country were violence and terror have reigned for over forty years. Patience and perseverance, optimism 78 79 80

Judgment, Part III, sections 5, 6. Judgment, Part III, sections 7, 8 The Court decides: “Declarar la exequibilidad del artículo 15 … siempre que se entienda que las órdenes militares violatorias de los derechos fundamentales intangibles e inescindibles de la dignidad humana (Ley 137 de 1994, artículo 4º) no deben ser ejecutadas y que, en caso de serlo, tales órdenes no podrán ser alegadas como eximentes de responsabilidad.” Judgment, Part IV.

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tempered with realism, and at times plain physical courage are among the main elements that will continue to be required, on all sides, to bring the process of peace-through-humanity ultimately to a successful conclusion.

Chapter 40 State Sovereignty vs. International Concern in Some Recent Cases of the Inter-American Court of Human Rights*

You win some, you lose some

1

Introduction

“International order consists essentially of respect for the personality, sovereignty, and independence of States, and the faithful fulfilment of obligations derived from treaties and other sources of international law;” thus says Article 3(b) of the Charter of the Organization of American States. The tension between the two halves of this sentence is evident: on the one hand, the States standing tall in their full armour of “personality, sovereignty and independence”; on the other, these same States in the much humbler role as obedient servants of the law. While inherent to all areas of international law, this tension is particularly noticeable in the spheres of human rights and international humanitarian law, areas where the “faithful fulfilment of obligations derived from treaties and other sources” impacts daily on the relations between the State and individuals under its jurisdiction – the archetype of an “internal affair” – and at the same time is a constant “matter of international concern”. In the Americas, the international aspect of human rights law is implicit in Article 3(j) of the Charter, stating that “the American States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed or sex”; and quite explicit in Articles 51 and 112. Article 51(e) lists the InterAmerican Commission on Human Rights (hereinafter: the “Commission”) among the main organs of the OAS, and Article 112 declares that “[t]here shall be an Inter-American Commission on Human Rights, whose principal function shall be to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters”.

* 1 2

Published earlier in G. Kreijen (ed.), State, Sovereignty, and International Governance (2002) pp. 259-280. Jim Courier, tennis ace, in reply to a journalist who had expected him to win a match he had lost. Done at Bogotá, 30 Apr. 1948.

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Articles 51(e) and 112 were introduced into the OAS Charter in 1967. The Commission actually preceded the Charter amendment, having been created in 1959 by a resolution of a meeting of Ministers of Foreign Affairs. In 1969, it was included in the American Convention on Human Rights, as one of the two organs that are competent “with respect to matters relating to the fulfilment of the commitments made by the States Parties to this Convention”. Whereas a few lines had sufficed to give the Commission its place in the Charter, the definition of its organization, functions, competence and procedure takes a whole chapter of the Convention. Out of all of this, two points are of immediate interest here: the main function or mandate of the Commission is “to promote respect for and defence of human rights”, and individuals “may lodge petitions with the Commission containing denunciations or complaints of violation of this Convention by a State Party”. Add to this that the exercise of the Commission’s broad powers in respect of an individual complaint may ultimately result in a contentious procedure before the Inter-American Court of Human Rights (or Court) as the other “competent organ” of the Convention, and the stage is set for serious conflicts between the sovereign States and the “competent” busybodies. Two of these conflicts, which led to recent decisions of the Court, provide the material for this chapter. One, the case of Las Palmeras, concerns a complaint by Colombia that the Commission was overstepping its competence in applying not only human rights but international humanitarian law as well – the State won, and was confirmed in its sovereign right to accept or reject an expansion of the Commission’s powers not specified in the Convention. The other, the Case 3

4 5

6 7 8 9 10

11

Protocol of Amendment to the Charter of the OAS, signed on 27 Feb. 1967 at the Third Special Inter-American Conference, Buenos Aires, Argentina. The amendment entered into force in 1970. Res. VIII of the Fifth Meeting of Consultation of Ministers of Foreign Affairs, Santiago, Chile, 12-18 Aug. 1959. The American Convention on Human Rights (hereinafter the American Convention, or the Convention) was signed on 22 Nov. 1969. It entered into force almost a decade later, on 18 July 1978. Art. 33. The other organ mentioned in Art. 33 is the Inter-American Court of Human Rights. Chap. VII: Arts. 34-51. Art. 41. The Article provides a long list of “powers and functions” the Commission has “in the exercise of its mandate”. Art. 44, giving this right to “any person or group of persons, or any non-governmental entity legally recognized in one or more member states of the Organisation.” The Court’s organisation, jurisdiction, functions and procedure are set forth in Chap. VIII of the Convention, Arts. 52-69. In contrast to the Commission, the Court is not an organ of the OAS Charter as well. Las Palmeras case, preliminary objections, judgment of 4 Feb. 2000, Series C No. 66.

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of the Constitutional Court, concerns the “withdrawal” by Peru of its acceptance of the jurisdiction of the Court after this had been seised of a complaint – the State lost, and was deemed by its earlier act to have forfeited the sovereign right to withdraw its recognition of the competence of the Court, as an essential element of the system of “collective guarantee” of the human rights enshrined in the Convention. 2 The Las Palmeras Case 2.1 The Facts The case of Las Palmeras began with a fairly ordinary event: a small-scale armed operation of the national police, assisted by an army helicopter, carried out on 21 January 1991 against the locality Las Palmeras in the Mocoa municipality, capital of the department Putumayo, in the south west of Colombia close to the Ecuadorian border. The army helicopter shot and wounded a six-year-old kid on his way to school. The police arrested in and around the school seven persons, at least six of whom they summarily executed. Of the seventh victim it was unknown whether he had also been executed or might have died in a combat situation. The activity had apparently been planned as a counter-guerrilla operation, but all seven victims were civilians. To justify their conduct, the police clad several of the bodies in uniforms and burned their clothes, and attempted to terrorize the witnesses of the events. While disciplinary action against the perpetrators resulted in their instant acquittal, administrative procedures established that the victims had not belonged to any armed group and had been summarily executed. Military criminal procedures for years remained stuck at the investigative stage without leading to formal accusations against any of the perpetrators. Then, a complaint lodged with the Commission on 27 January 1994 set in motion a procedure which ultimately led to the adoption, on 20 February 1998, of a report on the case which the Commission on 6 March 1998 sent to the Colombian Government. The report concluded that with respect to six of the victims, Colombia had violated the right to life enshrined in Article 4 of the American Convention and common Article 3 of the Geneva Conventions. The 12 13

14 15

The case of the Constitutional Court, jurisdiction, judgment of 24 Sept. 1999, Series C. No. 55. Information about the case is derived from the judgment of 4 Feb. 2000, by which the Court ruled on five preliminary objections raised by Colombia, and from documents on file with the author. The National Police in Colombia is part of the armed forces and falls under the jurisdiction of the military courts. Art. 3 common to the Geneva Conventions of 12 Aug. 1949 for the protection of war victims provides a set of basic precepts for the treatment of “persons taking no active

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persistent lack of clarity about the circumstances of the death of the seventh victim (whether or not in combat) prevented a conclusion whether these articles had been violated in regard of that person as well. After last-resort attempts at reaching a friendly settlement had remained without success, the Commission on 6 July 1998 submitted the case to the Court. On 14 September 1998, the Colombian Government entered five preliminary objections. By its Judgement of 4 February 2000, the Court admitted two of these objections and, rejecting the other three, concluded that it remained seised of the case. The two preliminary objections admitted by the Court had to do with the question whether the Commission – and, in its wake, the Court – is competent to hold a State responsible for a violation of the right to life as enshrined in Article 3 common to the Geneva Conventions; whether, in other words, the Commission and the Court are entitled to “apply international humanitarian law”. The Court had never done this, but the Commission had developed a practice by which it based its conclusions concerning events connected with an internal armed conflict both on the relevant articles of the American Convention and on common Article 3. 2.2 The Position of the Commission The Commission had claimed the power to refer to international humanitarian law, first, as a means to interpret rules of the Convention. The last sentence of Article 4(1), for instance, provides that “No one shall be arbitrarily deprived of his life.” While this rule applies at all times, the Convention provides no guidance to determine what, in a situation of internal armed conflict, amounts to an arbitrary deprivation of life. This, the Commission argued, is where common Article 3 steps in: that article – or, rather, the body of international humanitarian law that may be perceived to be behind it – provides exactly the type of information required to determine such an issue. Going one step further, the Commission also ventured to hold States directly responsible for violations of common Article 3. The first case of this type to draw wide attention has become known as the Tablada case, after the locality in Argentina where on 23 and 24 January 1989

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18

part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause”, in a situation of “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.” See above note 9, para. 43; the objections the Court rejected had to do with matters of procedure that are of no interest in the present context. The second and third preliminary objections, contending that the Commission and the Court “lacked the competence to apply international humanitarian law and other international treaties.” Report No. 55/97, Case No. 11.137, Argentina, approved by the Commission on 18 Nov. 1997; OEA/Ser.L/V/ II.97, Doc. 38.

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a battle raged for 30 hours between forty-two armed persons who attacked and overran an army barracks, and Argentine military personnel who recaptured the barracks. Argentina was not at the time the scene of an internal armed conflict. Yet, the action of the attackers and the reaction of the State displayed the characteristics of a military operation. This led the Commission to conclude that “despite its brief duration, the violent clash between the attackers and members of the Argentine armed forces triggered application of the provisions of Common Article 3, as well as other rules relevant to the conduct of internal hostilities”. Having thus established the existence of a thirty-hour armed conflict, the Commission went on to find that the attackers had been civilians who by their activities had “become legitimate military targets … subject to direct individualised attack to the same extent as combatants.” That some of them had been killed in battle was therefore neither a violation of common Article 3 nor an “arbitrary deprivation of life”. While the Tablada case may be seen as a rather timid attempt to use common Article 3, not only as a means to interpret provisions of the American Convention in situations of internal armed conflict, but as an instrument to hold States responsible for violations of international humanitarian law, the Commission in other cases has more boldly pursued that course without encountering any angry reactions on the part of the States concerned. It was this attitude of passive acceptance that Colombia wanted to bring to an end with the Palmeras case. 19 20

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22

Ibid., para. 156. In para. 327, the Commission qualifies the events as having constituted “a non-international armed conflict”. Ibid., para. 178; emphasis as in the original. The Commission had thus created a hitherto unknown variant of internal armed conflict, viz. a confrontation between a group of armed civilians on one side and the army on the other. For a thorough criticism of the Tablada decision see: L. Zegveld, “The Inter-American Commission on Human Rights and international humanitarian law: A comment on the Tablada Case”, (1998) 38 IRRC pp. 505-511. The Commission construes the relationship between the surviving attackers and the State agents into whose hands they fell as “analogous to that of prison guards and the inmates under their custody.” In consequence, “the State had, under Art. 1(1) of the American Convention and Common Art. 3 of the Geneva Conventions, a duty to treat these persons humanely in all circumstances and to ensure their safety” (para. 195). That they had not been so treated, but had been tortured and in several instances summarily executed, was evident from the facts. Against expectations, the Commission in the final parts of its Report no longer relies on common Art. 3: it qualifies the summary executions solely as violations of Art. 4 of the American Convention, and other instances of maltreatment as violations of Art. 5(2) of that Convention (which provides that “[n]o one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person”). An earlier case concerning Colombia is Report No. 26/97, Case 11.142 (La Leche), 30 Sept. 1997; the Commission concluded that “in this case the Colombian State did not carry out its obligation to respect and guarantee the rights of persons who are

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Colombia had addressed those of its preliminary objections that related to this issue, first and foremost to the practice of the Commission; and, almost as an afterthought, to any urge the Court might feel to emulate the example of the Commission. Reversing the order, the Court starts out with the objection that relates to its own competence. Throughout the proceedings, the Commission treats the issue of its own competence and that of the Court as an indivisible whole. In its submission, the case must be decided in the light of the norms, both of the American Convention and of customary international humanitarian law as codified in common Article 3, and both Commission and Court are competent to do so. Noting that Colombia agrees that at the time of the events, its territory was the scene of an internal armed conflict as defined in common Article 3, the Commission argues that since the American Convention provides no guideline to distinguish between the lawful and unlawful killing of an enemy, recourse to the Geneva Conventions is necessary. For this argument it seeks support in a dictum of the International Court of Justice in its Nuclear Weapons advisory opinion, which states in part that “whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.” Similarly, the Commission in the Tablada case had established first whether common Article

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placed hors de combat in an internal armed conflict. The extrajudicial execution of the 11 victims constituted a flagrant violation of Common Article 3 of the Geneva Conventions in that State agents were absolutely required to treat humanely all of the persons within their power due to injury, surrender or detention, whether or not they had previously participated in hostilities” (para. 202). Again, in a case against Colombia decided on 13 Apr. 1999, the State was held to have violated common Art. 3 and Art. 4 of the American Convention (Report No. 61/99, Case 11.519, José Alexis Fuentes Guerrero y otros). In a recently decided case about events dating back to the time of the internal armed conflict in El Salvador, the Commission concludes that apart from provisions of the American Convention, the State has violated both Art. 3 common to the Geneva Conventions and Art. 4 of the 1977 Protocol II additional to those Conventions; Lucio Parada Cea y otros, Report No. 71/99, Case 10.480; this is the first and, to my knowledge, only case where the Commission could base its conclusion also on Protocol II (which protects victims of internal armed conflict), since El Salvador was a party to that Protocol at the time of the events. This is after the Court had rejected the first preliminary objection. The arguments of the Commission are reflected in paras. 29 (written phase) and 31 (hearings) of the judgment. Colombia became a party to Protocol II in 1995; this Protocol therefore played no role in the present case, the events of which had occurred in 1991. Legality of the Threat or Use of Nuclear Weapons, advisory opinion (1996) ICJ Rep. 66, para. 25. The Covenant is the 1966 International Covenant on Civil and Political Rights.

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3 had been violated; once that was done, it could answer the question whether there had been a violation of Article 4 of the American Convention. The Commission also invokes Article 25 of the Convention, as the judgment briefly (and hardly accurately) states, as “a rule that permits it to apply humanitarian law.” The argument of the Commission, somewhat more sophisticated than that, runs as follows. According to Article 25 (Right to judicial protection), “[e]verybody has the right to … effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention…” When a violation of such a right is not properly amended in the domestic procedure and the right involved finds its source in a provision of the Conventions of Geneva which the State has incorporated into its domestic law, the Commission can take up the case. This is precisely the situation in Colombia, where the Constitutional Court has held that the Geneva Conventions are part and parcel of the so-called “bloc of constitutionality”. The Commission adds that not to harmonize the international obligations of the State with the competence of the organs of the Inter-American system “in an all-encompassing and teleological setting” would amount to a betrayal of the legal and ethical object underlying Article 29, which is the best possible and progressive application of the Convention.

27

28

29

30

See above note 18. In its written argument, the Commission emphasizes that its “application” of common Art. 3 “no constituye una auto-atribución de competencias que no le pertenecen … sino más bien la respuesta al vacío normativo de caracter específico para casos que involucran ataques indiscriminados a la población civil por parte de agentes del Estado en el marco de un conflicto armada interno y que deben ser adjudicados a la luz del artículo 4 de la Convención Americana.” “Finalmente, la Comisión invocó el artículo 25 de la Convención Americana. Este artículo fue interpretado por la Comisión en el sentido de que se trata de una norma que le permite aplicar el derecho humanitario.” See above note 11, p. 5, para. 29. The judgments of the Colombian Constitutional Court concern the Geneva Conventions of 1949 as well as the two Additional Protocols of 1977; see F. Kalshoven, “Protocol II, the CDDH and Colombia” in K. Wellens (ed.), International Law: Theory and Practice (1998) p. 597, at pp. 604-12. “La Comisión considera que ignorar el contenido y el alcance de ciertas obligaciones internacionales del Estado, y renunciar a la tarea de armonizarlos con la competencia de los órganos del sistema interamericano en un contexto integral y teleológico, implicaría traicionar el bien jurídico y ético promovido por el artículo 29, vale decir, la mejor y más progesíva aplicación de la Convención Americana.” See above note 11, p. 6, para. 31. Art. 29 (Restrictions Regarding Interpretation) prohibits the interpretation of any provision of the Convention in a sense restricting rights recognized in the Convention or elsewhere.

900 Chapter 40 2.3 The position of the Government of Colombia The position of the State is simple: the Court derives its jurisdiction from Articles 33 and 62 of the Convention. Article 33 attributes competence to the Court (as, indeed, to the Commission) “with respect to matters relating to the fulfilment of the commitments made by the States Parties to this Convention” (emphasis added), and Article 62(1) provides that a State party may, if it so wishes, accept “the jurisdiction of the Court on all matters relating to the interpretation or application of this Convention” (emphasis added). Then, in response to the arguments of the Commission, it advances two further points. It emphasizes the importance in international law of the principle of consent: without the consent of the State, the Court cannot apply the Geneva Conventions. And it points to the distinction between “interpretation” and “application”: while the Court is free to interpret the Geneva Conventions as it may interpret other treaties, the only treaty it can apply is the American Convention. 2.4 Views of the Court The line of argument of the Court is equally simple. When a State is party to the American Convention and has accepted its jurisdiction, the Court is competent to determine whether any rule of domestic or international law applied by the State, in time of peace or war, is compatible with the American Convention. To arrive at its decision concerning a specific case, it interprets and analyses the rule in question in the light of that Convention. The Court, in other words, while competent to interpret the Geneva Conventions whenever necessary to interpret a rule of the American Convention, is not competent to apply those Conventions. Having thus disposed of – and unanimously accepted – the third preliminary objection, the Court needs little space to deal with the second, concerning

31 32

See above note 11, p. 5, para. 28. “La Corte es … competente para decidir si cualquier norma del derecho interno o internacional aplicado por un Estado, en tiempo de paz o de conflicto armado, es compatible o no a la Convención Americana. En esta actividad la Corte no tiene ningún límite normativo: toda norma jurídica es susceptible de ser sometida a este examen de compatibilidad… Para realizar dicho examen la Corte interpreta la norma en cuestión y la analiza a la luz de las disposiciones de la Convención. El resultado de esta operación será siempre un juicio en el que se dirá si tal norme o tal hecho es o no compatible con la Convención Americana. Esta última sólo ha atribuido competencia a la Corte para determinar la compatibilidad de los actos o de las normas de los Estados con la propria Convencíon, y no con los Convenios de Ginebra de 1949.” See above note 11, p. 7, paras. 32, 33. – Elsewhere in the Judgement, in relation to the question of exhaustion of local remedies, Colombia stresses “el carácter subsidiario que tiene la juricción internacional de los derechos humanos frente a la jurisdicción interna”; p. 8, para. 36.

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the competence of the Commission. It does not bother to repeat any of the Commission’s arguments. It notes the emphatic rejection by the State of any competence of the Commission to hold it responsible for violation of the Geneva Conventions, and of common Article 3 in particular. For its part, it underlines the broad powers of the Commission as an organ for the promotion and protection of human rights. When it is a matter of a contentious case that may ultimately find its way to the Court, however, the competence of the Commission is strictly limited to the rights protected by the American Convention (and by other treaties such as the Inter-American Convention on the Forced Disappearance of Persons). Grounds on which the Court admits the second preliminary objection. Two Separate Opinions are appended to the judgment. One, by Judge (and President) Antônio A. Cançado Trindade, enters into the erga omnes character of the obligations of protection under both human rights law and international humanitarian law. Pointing to the growing convergence of the two bodies of law, he emphasizes the importance of identification and implementation of the general obligation to guarantee the exercise of the rights of the human person, common to the American Convention and the Geneva Conventions. This gen33 34

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The judgment devotes just one paragraph to the second preliminary objection. See above note 11, p. 7, para.34. “El hecho de que los Estados miembros de la Organización de los Estados Americanos deban observar de buena fe los Convenios de Ginebra y ajustar su legislación interna al cumplimiento de esos instrumentos no le confiere competencia a la Comisión para deducir responsibilidad del Estado con baso en ellos… [E]l Estado señaló que estaba de acuerdo con interpretar armónicamente la Convención con otros tratados, pero no admitió la aplicación del artículo 3 común como una norma infringida por Colombia en un caso individual.” See above note 11, p. 7, para.34. The decision was taken by a 6-1 vote. The dissenting Judge Oliver Jackman, while “entirely support[ing] the view that neither the Court nor the Commission is authorised by the Convention to apply international humanitarian law in matters brought before them”, argues that the second “preliminary objection” is not really a preliminary objection at all, since it does not challenge the jurisdiction of the Court. “Thus, the question whether or not the Commission is competent to apply international humanitarian law is, at best, moot, and at worst impertinent and irrelevant, since an answer in the affirmative would in no way affect the jurisdiction of the Court to hear the case.” See above note 11, p. 13. “Al sostener, como lo vengo haciendo, hace años, las convergencias entre el corpus juris de los derechos humanos y el Derecho Internacional Humanitario (en los planos normativo, hermenéutico y operativo), pienso, sin embargo, que el propósito concreto y específico del desarrollo de las obligaciones erga omnes de protección (cuya necesidad vengo igualmente sosteniendo hace tiempo) puede muy servido, más bien por la identificación y cumplimiento de la obligación general de garantía del ejercicio de los derechos de la persona humana, común a la Convención Americana y las Convenciones de Ginebra … que por una correlación entre normas sustantivas – relativas a derechos protegidos, como el derecho a la vida – de la Convención Americana y los Convenciones de Ginebra.” See above note 11, p. 10, para. 7.

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eral duty to respect and ensure respect for the protective rules, enshrined equally in Article 1(1) of the American Convention and in the opening articles of the Geneva Conventions and of Protocol I of 1977, is the real common denominator of these instruments and reinforces the erga omnes obligation to protect the right to life, in time both of peace and war. In this context, the Judge declares himself a strong supporter of application of the erga omnes concept in the shape of the inter-State complaint: insufficiently used, but a necessary instrument to bring about greater cohesion and institutionalization in the international legal order, in particular in the domain of protection. The other Separate Opinion, by Judge Sergio García Ramírez, elaborates the point made in passing in the Court’s Judgement, that the Commission (in contrast with the Court) possesses broad powers for the promotion and protection of human rights. The second preliminary objection of Colombia concerns the “competence” of the Commission. That, argues the Judge, is a wider notion than the “jurisdiction” of a judicial body like the Court. In effect, the “competence” of the Commission falls into two categories: one, its functions for the promotion of human rights which do not lead to a contentious procedure before the Court; the

37

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Art. 1(1) of the American Convention provides that the States parties “undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms”. Art. 1 of the Geneva Conventions and Art. 1(1) of Protocol I provide that the contracting States “undertake to respect and to ensure respect for [these instruments] in all circumstances.” On the latter Articles see F. Kalshoven, “The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit”, 2 YIHL (1999) p. 3. “Es este [i.e., the obligation to respect and ensure respect], a mi modo de ver, el denominador común (que curiosamente parece haber pasado desapercibido en el alegato de la Comisión) entre la Convención Americana y las Convenciones de Ginebra, capaz de conducirnos a la consolidación de las obligaciones erga omnes de protección del derecho fundamental de la vida, en cualesquiera circunstancias, tanto en tiempo de paz como de conflicto armado interno. Es sorprendente que ni la doctrina, ni la jurisprudencia, hayan desarrollo este punto suficiente y satisfactoriamente hasta la fecha; ¿haste cuándo tendremos que esperar a que despierten de una aparente y prolongada inercia o letargia mental? ” See above note 11, p. 10, para. 8. “Algunos tratados de derechos humanos establecen un mecanismo de peticiones o comunicaciones que comprenden, a la par de las peticiones individuales, también las interestatales; estas últimas constituyen un mecanismo par excellence a acción de garantía colectiva. El hecho de que no hayen sido usadas con frequencia (jamás en el sistema interamericano de protección, hasta la fecha) sugiere que los Estados Partes no han revelado todavía su determinación de construir un verdadero ordre public internacional basado en el respecto por los derechos humanos. Pero podrían – y deberían – hacerlo en el futuro, con su creciente concientización de la necesidad de lograr mayor cohesión e institucionalización en el ordenamiento jurídico internacional, sobre todo en el presente domínio de protección.” See above note 11, p. 11, para. 13.

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other, those that do. The Opinion examines in some detail the various modalities of cases that may ultimately wind up in the Court, but does not go any further into the other broad functions of the Commission. This suggests that the Judge (as, perhaps, the entire Court) considered Colombia’s preliminary objection as of relevance only in relation to those functions of the Commission that may lead to a contentious procedure before the Court. 2.5

Concluding Remarks

The other “broad powers” of the Commission, alluded to by Judge Sergio García Ramírez, include matters such as on-site observations and all sorts of reports, among them country reports. Either type of activity may take place with regard to a State that is involved in an internal armed conflict – such as Colombia. The Commission effectively does this, for instance, through the instrumentality of “country reports”. In February 1999, it published its Third Report on the Human Rights Situation in Colombia. The Report is noteworthy because it describes and analyses violent acts of all the parties to the conflict: the two main guerrilla movements, the armed forces, and the paramilitary; and holds all of these violent acts against the light of the applicable law: for the guerrilla movements, international humanitarian law; for the armed forces: both international human rights and humanitarian law; for the paramilitary, international humanitarian law – except when a member of the armed forces is involved in the paramilitary activities: in that event, both systems of law are again applicable. It is of interest to note that Colombia did not protest against these features of the Commission’s Third Report, which actually was published after Colombia had submitted to the Court its preliminary objections in the case of Las Palmeras. I have even heard it said that the Government was rather pleased to see the acts of the various opposition groups so unreservedly exposed. In conclusion, it is submitted that had the Court upheld its own power and that of the Commission to “apply” international humanitarian law, in the sense of holding a State responsible for violations of that body of law, this would have

40

41

Among the functions of the Commission enumerated in Art. 41 of the Convention, the only one that may ultimately lead to the Court is Art. 41(f ): “to take action on petitions and other communications pursuant to its authority under the Articles 44 through 51 of this Convention.” Art. 44 deals with individual “petitions … containing denunciations or complaints of violation of this Convention by a State Party.” Art. 45 concerns “communications” presented by a State party that has recognized the competence of the Commission to deal with such communications, alleging that another State party “has committed a violation of a human right set forth in this Convention.” In its Regulations, the functions of this type are elaborated in Arts. 2247, and those of the more general type in Arts. 51-63. OEA/Ser.L/V/II.102, Doc. 9 rev. 1, 26 Feb. 1999.

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added another – welcome – instrument to enforce that law. Its decision to admit the two preliminary objections, on the other hand, is in conformity with the classical theory that consent to be bound by a treaty limits a State’s sovereignty no further than follows from the right interpretation of the terms of the treaty. In so interpreting the terms of the American Convention, it may be added that the Court’s judgment appears to have left the non-contentious powers of the Commission intact. 3 The Constitutional Court Case 3.1 The Facts The sovereignty of the State safeguarded in the Las Palmeras case concerns one feature of the State’s treaty-making powers. To enter into treaty relations with other Sates is indeed one of the most peaceful ways by which a State may effectuate its sovereignty. In doing so, the State binds itself to the terms of the treaty for the duration of the treaty’s existence – as the age-old maxim goes: pacta sunt servanda. In the Constitutional Court case, Peru saw itself confronted with, and did not wish to accept, a particular consequence of this fundamental rule of international law, when an individual complaint that had arisen out of manoeuvres to clear the road for the re-election of the sitting President ultimately had found its way to the Inter-American Court of Human Rights. The case concerns a chain of events in Peru that begins in April 1992, with the President, Alberto Fujimori, dissolving the Congress and the Constitutional Court, and dismissing a number of judges of the Supreme Court. Article 112 of a new Constitution adopted in October 1993 provides that the term of office of the President is for five years and that he can be re-elected once; after yet another five-year period, he can be a candidate again. In June 1996, a new seven-member Constitutional Court is installed, and in August, an Act is promulgated on the right interpretation of Article 112. The Act provides that Article 112 has no retroactive effect – meaning that in determining the terms of office, any period that began prior to the entry into force of the 1993 Constitution is not taken into account. 42

43 44

The instrument would remain a one-sided one, since in contentious proceedings the competence of the Commission (and a fortiori the jurisdiction of the Court) is directed exclusively against the State. Analysis and qualification of acts of non-State parties to the conflict, as in the Commission’s Third Report on Colombia, is only possible in a non-contentious setting. The facts are stated here as presented in Parts II (“Hechos expuestos en la demanda”) and III (“Procedimiento ante la Comisión”) of the Court’s judgment, above note 12. Act No. 26.657 or “Ley de Interpretación Auténtica del artículo 112 de la Constitución” providing that re-election “está referida y condicionada a los mandatos presidenciales iniciados con posterioridad a la fecha de promulgación del referido texto constitucional …

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Within a week, a group of lawyers (the Colegio de Abogados de Lima) applies to the Constitutional Court, asking it to declare the Act unconstitutional for violation of Article 112. The Court from the outset is divided on the issue, and is put under various forms of pressure to reject the request. In the end, with four of the judges abstaining, a “majority” of three votes cast adopts a decision whereby the Act is declared “inapplicable” – as opposed to unconstitutional, which would have required six affirmative votes. The decision is thereupon published as a judgment of the Constitutional Court of 3 January 1997. Then, on 28 May 1997, by resolutions of the Congress, the three judges who delivered the judgment are dismissed from the Constitutional Court. Apparently, the Congress had not been unanimous in its decision. On 2 June 1997, a formal complaint concerning the dismissal, signed by twenty-seven members, is lodged with the Inter-American Commission on Human Rights. After some procedural wrangling the Commission declares the case admissible and places itself at the disposition of the parties to find a friendly settlement. When attempts to that effect fail, and after Peru repeatedly asks for a further delay, the Commission ultimately, on 17 June 1999, decides to submit the case to the Court. It does so on 2 July 1999. In its application, it requests the Court to decide whether Peru has violated a series of provisions of the Convention: Articles 8 (on judicial guarantees), 23 (on political rights), and 25 (on judicial protection), in connection with Articles 1(1) (obligation to respect the rights embodied in the Convention) and 2 (obligation to adopt the provisions of domestic law necessary to give effect to those rights). By a note dated 12 July 1999, received two days later in the office of the Minister of Foreign Relations of Peru, the Court notifies the Commission’s application to the State, adding information about the applicable time limits and the possibilities of entering preliminary objections and designating a judge ad hoc. Then, on 16 July, the Ambassador of Peru in Costa Rica makes an appearance at the Court. He formally hands back the application with the accompanying documents. He also hands over a note dated 15 July 1999, whereby the Minister in Charge of Foreign Relations lets it be known that Peru withdraws its recogni-

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[E]n el cómputo no se tienen en cuenta retroactivamente, los períodos presidenciales iniciados antes de la vigencia de la Constitución.” The judgment explicitly “declaró ‘INAPLICABLE, por unanimidad de los votos emitidos, con las abstenciones indicadas, y en exercicio de sus atribuciones de control difuso, la ley interpretativa No 26657, para el caso de una nueva postulación a la Presidencia de la República, en al año 2000, del actual Jefe de Estado’.” See above note 12, p. 4. The point at issue was whether local remedies had been exhausted. In May 1998 the Commission rejected the objection of the State on that score. The Commission also requests the Court to rule that Peru make integral and adequate reparation and re-instate the 3 magistrates in their functions. The proceedings at the Court are described in Part IV of the Judgment (“Procedimiento ante la Corte”).

906 Chapter 40 tion of the contentious jurisdiction of the Court. The note states that on 8 July the Congress gave its approval for this step, and on 9 July the Government of Peru deposited with the General Secretariat of the OAS at Washington the document stating that Peru withdraws, “in conformity with the American Convention on Human Rights and with immediate effect”, its declaration of recognition of the competence of the Court. The note adds, for good measure, that the note of 12 July 1999 whereby the Court notified Peru of the case submitted by the Commission, concerns a matter which is not within the competence of the Court. The recital of events in the Court’s judgment terminates with the presentation, on 10 September 1999, of the Commission’s Observations concerning the return of the application and the jurisdiction of the Court, ending with the conclusion that the “withdrawal” by Peru is without effect and leaves the Court’s jurisdiction unimpaired. Before turning to the next part of the judgment, where the Court sets forth its findings on the points at issue, it is of interest to pay attention here to the line of argument the Commission follows in its Observations. 3.2 The position of the Commission The Commission presents three arguments, two of which are technical and the third, principled. The technical arguments are that a State cannot withdraw its acceptance of the Court’s jurisdiction once it is validly seised of a case; and, even if this were otherwise, such a “withdrawal” cannot have immediate effect. The principal argument is that once a State Party to the American Convention on Human Rights has accepted the jurisdiction of the Court, it cannot withdraw that acceptance at all.

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49 50

The salient parts of the note, as reflected in para. 23 of the Judgment, read as follows: “[e]l 9 de julio 1999, el Gobierno de la República del Perú procedió a depositar en la Secretaría General de la Organización de los Estados Americanos (OEA), el instrumento mediante el cual declara que, de acuerdo con la Convención Americana sobre Derechos Humanos, la República del Perú retira la declaración de reconocimiento de la cláusula facultativa de sometimiento a la competencia contenciosa de la Corte Interamericana de Derechos Humanos … [E]l retiro del reconocimiento de la competencia contenciosa de la Corte produce efectos inmediatos a partir de la fecha del depósito del mencionado instrumento ante la Secretaría General de la OEA, esto es, a partir del 9 de julio de 1999, y se aplica a todos los casos en los que el Perú no hubiese contestado la demanda incoada ante la Corta … [L]a notificación contenida en la nota … de fecha 12 de julio de 1999, se refiere a un caso en el que esa Honorable Corte ya no es competente para conocer de demandas interpuestas contra la República del Perú, al amparo de la competencia contenciosa prevista en la Convención Americana sobre Derechos Humanos.” (emphasis added) An English version of the Observations is reproduced on the Internet at www.cidh. org/Otros/ConstitutionalCourt.htm See above note 12, p. 9, para. 24.

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For its first argument, the Commission sets forth the system, provided in the Convention, for the acceptance of the Court’s jurisdiction. The optional clause in Article 62(1) enables a State party that wishes to do so, to “declare that it recognises as binding, ipso facto, and not requiring any special agreement, the jurisdiction of the Court on all matters relating to the interpretation or application of this Convention.” According to Article 62(2), “[s]uch a declaration may be made unconditionally, on the condition of reciprocity, for a specified period, or for specific cases.” Article 62(3) provides that the jurisdiction of the Court comprises “all cases concerning the interpretation and application of the provisions of this Convention that are submitted to it”, and Article 61(1) that “[o]nly the States Parties and the Commission shall have the right to submit a case to the Court.” The Commission notes that Peru ratified the Convention in 1978 and on 21 January 1981 deposited the declaration (dated 20 October 1980) by which it recognized the jurisdiction of the Court, “for an indefinite time and under the condition of reciprocity.” Article 61(2) provides that for a case to be submitted to the Court it is required that “the procedures set forth in Articles 48 to 50 shall have been completed.” The Articles in question concern the procedures at the level of the Commission. In the case at issue, these had been fully completed. The Commission has filed its application with the Court on 2 July 1999. This act of filing, it notes, “is the key event which initiates proceedings” before the Court (as with other judicial bodies such as the International Court of Justice or the European Court of Human Rights). “It is necessarily as of the date of filing that the elements necessary to confer jurisdiction must be presented. Once those elements have been presented, the Court is seised of the case by application… Once a court is validly seised of a matter, it alone has the competence to determine the existence and scope of its jurisdiction.” Peru has indicated that its “withdrawal” applied to all cases in which it had not submitted its answer to applications initiated before the Court. This, the Commission notes, represents an attempt by Peru “retroactively [to] condition the Court’s exercise of its validly conferred jurisdiction on its own [i.e., Peru’s] subsequent conduct.” The attempt is in vain: if an international tribunal has jurisdiction on the date of its effective seizure of a matter, “this cannot be affected by subsequent events or acts of the parties.” 51 52 53 54

See above note 49, Part III. Obviously, the condition of reciprocity can only apply in an inter-State case – of which no instance has yet occurred in the Inter-American context: above note 39. See above note 49, Section III(B). See above note 49, Section III(C). The Commission writes: “It is a long settled question that such subsequent acts, including the expiration or attempted withdrawal of a declaration of acceptance of contentious jurisdiction under an optional clause during proceedings already initiated, will have no effect on the exercise of that jurisdiction… To make the existence or scope of such jurisdiction] depend on the subsequent conduct of a party … would make the operation and efficacy of the contentious

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For its second argument, that the purported “withdrawal” by Peru in any event cannot produce the immediate effects that State claims, the Commission relies both on general principles of law such as non-retroactivity and good faith, and on the fact that under the terms of Article 78 of the Convention, even the denunciation of the Convention requires “notice given one year in advance” and does not release the State from its obligations under the Convention “with respect to any act that may constitute a violation of those obligations and that has been taken by that State prior to the effective date of denunciation.” Building up its third argument, the Commission notes first that according to Article 62(2), a State may accept the jurisdiction of the Court “unconditionally, on the condition of reciprocity, for a specified period, or for specific cases”; Peru, in accepting the jurisdiction of the Court, has “invoked no condition of temporal application”, nor has it “attempt[ed] to reserve a right to denounce its recognition at a future time.” Furthermore, “[w]hile a State Party has full liberty to invoke the permissible conditions set forth in Article 62(2) when accepting jurisdiction, that provision provides no procedure for withdrawing an acceptance of jurisdiction made absent such invocation… [Peru] cites no textual basis for its action, nor does the Commission consider that one can be established.” Apart from this factual consideration, there is the nature of the American Convention as an instrument of international human rights law. On this aspect, the Commission quotes an early advisory opinion of the Court, which defines the object and purpose of “modern human rights treaties in general, and the American Convention in particular” as: the protection of the basic rights of individual human beings irrespective of their nationality, both against the State of their nationality and all other contracting States. In concluding these human rights treaties, the States can be deemed to submit themselves to a legal order within which they, for the

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case system under the American Convention contingent upon the vicissitudes of the State’s conduct, frustrating the system’s very object and purpose, as well as the due expectations of the other Parties and actors affected by that system.” See above note 49, Part IV; the Commission regards this argument as of minor importance, wedged as it is between the technically decisive first, and the principally even more important third, arguments. “Nonetheless, given that the Court has requested the Commission’s observations on the return of the application in this case in the context of [Peru’s] putative “withdrawal”, the Commission will proceed to consider the “immediate effects” which the State attributes to its declaration, before addressing the overall validity of the “withdrawal” itself.” See above note 49. The whole of the third argument is in Part V of the Observations. The Commission does not discuss whether a State could validly “reserve a right to denounce its recognition at a future time”. In the light of the remainder of its third argument, this seems highly doubtful.

State Sovereignty vs. International Concern in Some Recent Cases of the IACHR 909 common good, assume various obligations, not in relation to other States, but toward all individuals within their jurisdiction.

Other bodies, such as the International Court of Justice and the European Commission and Court, have expressed similar views. The distinct character and object and purpose of these treaties entail “corresponding specialised canons of construction”, with as “overriding principle” that of “efficacy”. The most marked difference between the “standards of interpretation applicable in the law of human rights” and “those of classical international law” results from “the non-reciprocal nature of human rights treaties.” One area where this difference is noticeable is that of reservations. Article 20(2) of the Vienna Convention on the Law of Treaties requires acceptance of a reservation by all the parties when “it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty.” The Commission notes that the Court has held this provision “inapplicable to the construction of reservations under the American Convention because the object and purpose of the instrument is not the exchange of reciprocal rights.” To illustrate the operation of this distinction in practice, the Commission juxtaposes two cases. One is the Fisheries Jurisdiction Case, where the International Court of Justice holds that a State is free to modify its declaration of acceptance and in doing so may impose broader limitations than those in the original declaration. The other case is Loizidou v. Turkey, where the European Court of Human Rights, faced with a reservation purporting to subject Turkey’s acceptance of its jurisdiction to a territorial restriction, recalls that human rights treaties create “objective obligations” over and above the exchange of “mere reciprocal engagements between States”, so that while a State was free to invoke the con57 58 59

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The Effect of Reservations on the Entry into Force of the American Convention (Arts. 74 and 75), advisory opinion (1982) Ser. A No. 2, para. 29. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, advisory opinion (1951) ICJ Rep. 23-4. The Commission mentions a decision of the European Commission (1961) YB 138, and a judgment of the European Court of Human Rights, Ireland v. United Kingdom judgment of 18 Jan. 1978, Series A-25, para. 239. The Commission refers to para. 27 of the advisory opinion of the Court cited above at note 59. Fisheries Jurisdiction Case (Spain v. Canada) [1998] ICJ Rep. 432 paras. 39-54. In its judgment of 21 June 2000 in the Case concerning the Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction (www.icj-cij.org.ccjwww/ipresscom/I Press 2000), the ICJ holds that States are even free to limit the scope ratione personae which they wish to give to their acceptance of its jurisdiction (Summary of Judgment on the Court’s website).

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ditions specified in the European Convention, “the applicable legal regime provided no basis for the imposition of restrictions not provided for therein.” And “[b]ecause the limitation attempted by the respondent State was incompatible with the object and purpose of the Convention regime, the Court deemed it severed from the State’s declaration of acceptance.” In the same line of thinking, the Commission argues, the putative “withdrawal” of Peru’s acceptance of the jurisdiction of the Court would be “analogous to a partial denunciation of its Convention undertakings.” For such an act the Convention provides no basis, and under the law of treaties the presumption is against “the possibility of partial denunciation (separability)” if such “separability … for the purposes of denunciation was not contemplated by the Parties.” Apart from all of that, any “withdrawal” of acceptance of the Court’s jurisdiction is contrary to the object and purpose of the Convention. The Commission notes the design of the Convention: The inter-American human rights system is intended to bring about the progressive engagement of member States with the system of undertakings and the corresponding enforcement mechanisms provided. All member States are bound by the jurisdiction [sic] of the Commission through the OAS Charter and American Declaration. That jurisdiction is automatic, and may be terminated only through withdrawal from the OAS system. Member States may elect to enhance their engagement by becoming a Party to the American Convention, and may elect at that time whether to attach reservations consistent with the treaty. Parties may further enhance that commitment by agreeing to accept the compulsory jurisdiction of the Honorable Court, and may elect at that time to do so conditionally or unconditionally … Once a State accepts that jurisdiction unconditionally, it must be deemed to be so bound. The Convention makes no provision for the progressive diminution of Party undertakings, such as the partial denunciation of obligations thereunder [emphasis added].

The Commission notes the important role the case system plays in the interAmerican human rights system, with a crucial role within that system for the Court: from the moment a State accepts its jurisdiction, “the protections available to individuals subject to [the State’s] control are amplified.” Then, returning once again to the terms of Article 62(2) which permit a State to accept the jurisdiction of the Court “subject to the conditions expressed, or unconditionally”, the Commission argues that the “plain meaning of these terms is to enable the State to exercise all options provided for at the time of acceptance. Those options that are not exercised, must be deemed to be waived… The Commission considers that the intention of the State of Peru when it accepted the jurisdiction of the 62

Loizidou v. Turkey, European Court of Human Rights (1995) Series. A-310, as given by the Commission in its note.

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Court, invoking only the condition of reciprocity, was to become bound without temporal limitation. The validity of that acceptance has never been challenged, and the intention expressed must prevail.” It continues: To the extent a State accepting compulsory jurisdiction wishes to condition that undertaking according to the terms of Article 62(2), the nature and scope of its acceptance are thenceforth clear to all affected parties, including individuals, other States Parties and the Commission and Court. Were States able thereafter to add restrictions not provided for or revoke acceptance at will, not only would the expectations and interests of those parties be affected, but the juridical certainty and stability of the system of compulsory jurisdiction as a whole would be jeopardised … States Parties may not be permitted, in light of the object and purpose of that system, to act unilaterally so as to establish their own regimes of undertaking and enforcement. This would threaten the effectiveness of the enforcement machinery as an integral part of the regional human rights system.

Emphasizing that “[t]hese considerations are reflected in over 20 years of State practice in the inter-American human rights system” and that “the only prior instance of denunciation under the Convention regime is that of Trinidad and Tobago, which invoked its right to denounce the Convention as a whole pursuant to the terms of Article 78”, the Commission concludes that the Court: became competent to exercise its contentious jurisdiction with respect to the case of the Constitutional Court when it was seized of the matter through the filing of the July 2, 1999 application. Neither the July 9, 1999 presentation by Peru of its putative “withdrawal” of acceptance of that jurisdiction, nor its subsequent return of the application and related documents on July 16, 1999 can have any effect on the exercise of that jurisdiction in this case … [I]t is a longsettled and well-founded rule that a State cannot, by a subsequent unilateral act, deprive an international tribunal of jurisdiction once it is validly seized of jurisdiction. The position proffered by the State, to the effect that its “withdrawal” applies so as to retroactively divest the Honorable Court of jurisdiction with respect to any case where it has not submitted its answer, finds no basis in law.

The Commission accordingly requests the Court to:

63 64

See above note 49, Part VI (Conclusion). See above note 49, Part VII (Petition).

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2.

Determine that the return by the State of Peru of the application and related documents in the case of the Constitutional Court is of no legal effect, and continue to exercise jurisdiction over this case; Take the steps appropriate at this stage of the proceedings, and continue with its consideration of the case pursuant to its Rules of Procedure.

3.3 Views of the Court Taking over, the Court divides the discussion of its competence over two parts: the facts that have led to its being seised of the Constitutional Court case (ending with the finding that “in the exercise of its competence” it became seised of the case on 2 July 1999, with the official reception of the application), and the law. In the latter part of its reasoning, the Court utilizes basically the same arguments the Commission advanced. Thus, from the moment it is seised of the case, it is for the Court and for the Court alone to resolve the question of the effects of the pretended withdrawal by Peru of the declaration by which it recognized the contentious jurisdiction of the Court. Like any other judicial body, the Court has the inherent power to determine the scope of its own jurisdiction. Indeed, this is not just a prerogative but an obligation which it cannot escape. No act of Peru could change this situation: the Court has and retains the compétence de la compétence. Given the fundamental importance of acceptance of the Court’s jurisdiction for the operation of the system of protection provided by the Convention, the rock-solid terms of Article 62 governing such acceptance cannot be deemed to be at the mercy of limitations not provided therein and that a State might wish to invoke for reasons of an internal order. In effect, no provision in the Convention expressly enables States parties to withdraw declarations of acceptance of the Court’s jurisdiction, nor does Peru’s acceptance dated 21 January 1981 provide for such possibility. Interpreting the Convention “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” (Art. 31(1) of the Vienna Convention 65

66 67 68

See above note 12, pp. 9-16 ( Judgment, Part V (“Competencia”)); the facts are in section A and the law in section B. The quoted finding is in para. 30: “[e]n el ejercicio de su competencia, la Corte asumió el conocimiento del caso del Tribunal Constitutional el 2 de julio de 1999, fecha en que recibió formalmente la demanda correspondiente, presentada de conformidad con los artículos 48, 50 y 51 de la Convención y 32 de su Reglamento.” See above note 12, p. 11, paras. 31-33. See above note 12, p. 11, para. 35; the Court states that acceptance of its competence “constituye una cláusula pétrea.” See above note 12, p. 12, para. 38. In section A, 10, para. 29, where the Court places on record Peru’s acceptance, it mentions the Act of 1978 approving Peru’s ratification of the Convention, which according to its terms would represent a “Ley del Estado, ‘comprometiendo para su observancia el honor de la República’.”

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on the Law of Treaties) the Court argues that a State can release itself from its obligations under the Convention only in conformity with the terms thereof. The implication for the case at issue is that, once it has accepted the contentious jurisdiction of the Court, the only way a State can release itself therefrom is through denunciation of the Convention as a whole – after a year, as provided by Article 78. Even if this were otherwise – a hypothesis the Court rejects out of hand as contrary to the object and purpose and integrity of the Convention – a “withdrawal” of a declaration accepting the jurisdiction of the Court would have no immediate effect. The key notions in the Court’s reasoning that emerge from the foregoing are the object and purpose and integrity of the Convention, and the overriding importance of its enforcement mechanisms. The Court repeatedly returns to these principal, ethico-juridical aspects of the case. In one particularly eloquent paragraph, it emphasizes that, like other human rights treaties, the Convention is equipped with specific supervisory mechanisms, is applied in conformity with the notion of collective guarantee, and consecrates objective obligations. It is thus by its very nature different from other treaties, which regulate reciprocal interests of the parties and are applied by those parties. Applying these notions to the optional clause in the Convention, the Court holds that by accepting the clause, a State binds itself completely to the integrity of that instrument and the guarantee of international protection of the human rights laid down therein. Any analogy with the permissive practices developed in relation to the optional clause in Article 36(2) of the Statute of the International Court of Justice must be rejected. Indeed, the international resolution of human rights cases, entrusted to judicial bodies such as the American and European Courts of Human Rights, has no analogy whatsoever with peaceful inter-State dispute settlement. In the context of the former, States cannot therefore expect the same level of discretionary power they retain in the latter. On all these grounds, the Court concludes that it must continue with the treatment of the case of the Constitutional Court. It unanimously decides that 69 70

71

See above note 12, p. 12, para. 39, and p. 15, para. 51. See above note 12, p. 13, para. 41: “La Convención Americana, así como los demás tratados de derechos humanos, se inspiran en valores comunes superiores (centrados en la protección del ser humano), están dotados de mecanismos específicos de supervisión, se aplican de conformidad con la noción de garantía colectiva, consagran obligaciones de carácter esencialmente objetivo, y tienen una naturaleza especial, que los diferencian de los demás tratados, los cuales reglementan intereses recíprocos entre los Estados Partes y son aplicados por éstos, con todas las consecuencias jurídicas que de ahí derivan en los ordenamientos jurídicos internacional y interno.” (emphasis added) In para. 42, the Court quotes the dictum in its 1982 advisory opinion that was earlier quoted by the Commission (above note 59); in para. 43, the advisory opinion of the ICJ in the Genocide case (above note 60), and in para. 44, the European cases mentioned above note 61. See above note 12, p. 14, paras. 45-47.

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it is competent to deal with the case and that Peru’s putative withdrawal, with immediate effect, of its declaration recognizing the competence of the Court is inadmissible. It also decides to remain seised of the case, and announces the necessary steps to put its decisions into effect. 3.4

Concluding Remarks

The decision of the Court to hold Peru’s putative – and theatrical – withdrawal “inadmissible” (ironically the identical term used in the judgment of the Constitutional Court that is at the root of the whole affair) shows that in the eyes of the Court, the gesture of Peru was no more than a preliminary objection. That it could arrive at a unanimous decision is because Peru had elected not to nominate a judge ad hoc. A decision on the merits may be a long way off, even in the post-Fujimori era. One of the requests submitted by the Commission, that the Court order the re-instatement of the three discharged magistrates, may be impractical by the time it comes to the decision on the merits: financial compensation may be more likely. The merits of the case were not at issue in the Court’s judgment of 24 September 1999. At issue was the character of a human rights instrument like the American Convention, and the consequences for a State party of voluntarily, and in the exercise of its sovereign rights, accepting the contentious jurisdiction of the Court. As argued by the Commission and held by the Court, these consequences are formidable indeed. Not only is the State prevented from modifying the terms of its acceptance – let alone withdrawing from it – in relation to a case of which the Court is seised; quite apart from any case pending, the State is simply precluded from reducing in any sense the scope of its acceptance or freeing itself from its bonds, except by denouncing the Convention in its entirety. The immediate effect of the Court’s decisions is limited to rendering futile the bit of theatre the Peruvian ambassador had staged at its seat in San José, Costa Rica. The longer-term effect the Court doubtless has sought to achieve is to impress upon the States parties to the Convention that the act of accepting its jurisdiction implies the forfeiture of any presumed sovereign right to withdraw from the system of “collective guarantee”, a system it holds as essential to the Convention as are its substantive rights. This aspect of the judgment gives rise to two pertinent questions. One is whether the Court has actually achieved its purpose. The other is whether its views are legally sound. Did the Court achieve its purpose? The question behind this question is whether its final decisions are actually based on its considerations concerning the notion of “collective guarantee” as an essential element in the system of imple72 73

See above note 12, pp. 16 and 17, para. 55, constituting the single paragraph of Part VI (“Puntos resolutivos”). See above note 47.

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mentation and enforcement of the American Convention. To conclude that Peru had not validly “withdrawn” from its contentious jurisdiction, the Court could have confined itself to the finding that the State had made its attempt at a juncture at which it was already seised of the case. The Commission in the “Observations” clearly separated this ground from the distinct ground it derived from the system of the Convention, that a State, once having become a party to the Convention and accepted the Court’s jurisdiction, is precluded from “withdrawing” from that jurisdiction and can only denounce the Convention as a whole. Indeed, the Commission explicitly recognized that the first ground is sufficient for the conclusion that Peru’s action was invalid, and it added the second argument in view of its importance as a matter of principle. The Court’s reasoning similarly contains both arguments (as, indeed, the third, that a “withdrawal” could never have immediate effect). Does this make the Court’s holding that a State cannot separately withdraw from its jurisdiction an obiter dictum? Had it copied the Commission’s presentation, the answer should probably be “yes”, and States might feel justified in ignoring the point. The Court did not however simply follow the Commission’s lead. For the Court, the notions of “object and purpose” and “integrity” of the Convention are so essential to every element of its line of argument as to turn this into one dictum, and one that is obviously indispensable to buttress the verdict. That leaves the other question, whether the thorough reduction of the sovereign rights of States parties to the American Convention of Human Rights, as applied or brought about by the Court, is legally correct. On this, I may just mention that if one considers the possibility of a new regime denouncing its predecessor’s acceptance of the Court’s jurisdiction so as to give itself a freer hand, the stance of the Court looks tempting. On the other hand, recognition of a right of withdrawal taking effect one year after its announcement, and obviously leaving all the powers of the Commission intact, appears less rigid and might be more in line with States’ justifiable expectations. Apart from this, and at a more abstract level, the notion of “collective guarantee” that is basic to the considerations of the Court in the Constitutional Court case (under the presidency of Judge Antônio A. Cançado Trindade), and that, as we saw, held a central place in the argument that judge developed in his Separate Opinion in the Las Palmeras case, deserves careful attention, at the very least, as an important building-block for the solidification and progressive development of international human rights law. 4

Conclusion

To revert to the introductory section of this paper, where the two cases discussed in this chapter were juxtaposed, it may now be concluded with somewhat greater 74

See above note 11, 10, para. 8.

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precision that in the Las Palmeras case, Colombia was confirmed in its sovereign right to decide whether to tolerate or reject a modus operandi of the Commission that amounted to application without the State’s consent, in a contentious setting, of a treaty provision – Article 3 common to the Geneva Conventions of 1949 – that, although normatively akin to the American Convention, still belongs to another family. Here, in other words, the Commission was challenging the State and, in doing so, going further than the Court was prepared to warrant. In the Constitutional Court case, it was Peru that challenged the Court, trying to recuperate a sovereign right it had in the past voluntarily – and, as it found, irretrievably – given up. This time, it was the State that was censured for going one step too far, not just because it dared to tamper with the jurisdiction of the Court in a case of which it had become properly seised but because it attempted to renege on its erga omnes obligation to guarantee the exercise of the rights of the human person, not only in its internal order but through the instrumentality of the international organs created for that purpose. The two judgments of the Inter-American Court of Human Rights may, as usual, be disappointing to the losing party. For the outsider, they are of interest for the light they shed on the relations in the American hemisphere between the sovereign States, members of the Organization of American States and parties to the American Convention of Human Rights, and the Commission and Court they have created for the promotion of those rights, as the instruments of “international concern”.

75

On 31 Jan. 2001, the Court gave its judgment on the merits. It unanimously found Peru (which had refrained from appointing an ad hoc judge or participating in any other way in the proceedings) guilty of violation of Arts. 8 (judicial guarantees) and 25 (right to judicial protection) of the American Convention, as well as the general obligation of Art. 1(1) to respect and ensure respect of the rights and freedoms recognized in the Convention. It ordered Peru to identify and punish those responsible for the violations and make its findings public, and to pay the discharged members of the Constitutional Court their salaries as well as sums in compensation for their expenses. The Court also decided to keep an eye on the implementation of its judgment and to declare the case closed only once this has been done to its satisfaction. Constitutional Court case, judgment of 31 jan. 2001, Series C. no. 71, para. 130.

Chapter 41 The Qualification of Specific Situations as International Armed Conflict*

1

Introduction

To begin with a trite observation: the Second World War has been an international armed conflict, and so were the wars between Iran and Iraq, 1980-1988, and, even more recently, between Eritrea and Ethiopia. There was never any doubt about the qualification of these conflicts: the Second World War was officially declared, and even if the others were not (as may have been the case) they were recognized by all concerned as armed conflicts between States, all of whom were High Contracting Parties to the core conventions on international humanitarian law (or IHL). Clearly, therefore, these cases are of no interest to us. Instead, we may save our time and energy for those situations which in the eyes of some participants and observers qualify as an international armed conflict, whereas others regard them, perhaps, not even as an armed conflict, or as an internal armed conflict at most. Rather than discuss our subject of qualification in abstract terms, I intend to focus on some actual cases and on the attitudes of the actors involved: governments and other authorities, as well as international agencies and institutions. Three cases did not (yet) become the object of judicial scrutiny: Chechnya, Kosovo, and Guantánamo Bay. Two others were dealt with by judicial bodies: Nicaragua, and Bosnia-Herzegovina. A last situation is a case apart in every respect: it is the “war on terror”. 2

Chechnya

Chechnya is one of the many territories that in the course of history were brought under Russian dominance. Like several other of those territories, it also is the theatre of prolonged and cruel armed conflict, with serious violations of applicable rules of IHL being alleged on both sides but without the international community doing much about it. Was there anything Chechnya could do itself? *

Published earlier in G. Ravasi & G.L. Beruto (eds.), International Humanitarian Law and Other Legal Regimes: Interplay in Situations of Violence, Proceedings of the 27th Round Table of the International Institute of Humanitarian law, San Remo, 4-6 September 2003 (2005) pp. 62-72.

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One theoretical option was for the authorities to recognize the situation as an internal conflict of the Protocol II type, claim that it was sufficiently virulent to pose a threat to international peace and security, and, on that basis, formally ask for Security Council intervention. Given the Russian veto power, this was indeed a purely theoretical possibility, and it does not seem likely that the Chechen authorities would have spent much time and energy on it. Another option was for the authorities to claim that the Chechen people were fighting a war of self-determination. On that basis they might have attempted to get the war recognised as an international armed conflict in the terms of Article 1(4) of Protocol I. As set forth in Article 96(3) of the Protocol, this would have required a unilateral declaration of the “authority representing the Chechen people” by which the authority undertook to apply the Conventions and the Protocol. The declaration would have to be addressed to the Swiss government as depositary of the Geneva Conventions and the Protocol, and it would then have the effects spelled out in Article 96. All of this may be true, and of course, Russia is a party to the Conventions and Protocol I. Yet, the precise language of Article 1(4) makes it very doubtful, to say the least, that a Chechen claim might have succeeded. The war is not against a racist regime, nor does it present a clear-cut case of colonial domination or alien occupation. Given the drafting history of Article 1(4) and the specific reference to the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, even a team of particularly brilliant lawyers might have had a hard time concocting a prima facie convincing brief. Had they tried and succeeded, that would have represented the first actual application of Article 1(4). In 1

2

3

Art. 1(4) refers to “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.” The effects would be the following: (a) the 1949 Conventions and the Protocol would be brought into force for the authority as a party to the conflict, with immediate effect; (b) the authority would assume the same rights and obligations as those assumed by the adverse party; and (c) the Conventions and the Protocol would be equally binding on both parties to the conflict. The Declaration is contained in the Annex to UNGA Res. 2625 (XXV) of 24 Oct. 1970. One of the principles it proclaims is the principle of equal rights and selfdetermination of peoples. This contains a paragraph cautioning that “[n]othing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States … possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.”

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this respect, while it may be too early to declare the provisions in Protocol I on wars of self-determination a dead letter, these provisions are not “alive and kicking” either, let alone that they might have entered into the realm of customary law. Chechnya actually did not try either of these options. Rather, the “Chechen Republic of Ichkeria” declared itself an independent, sovereign State and, hence, a party to an international armed conflict, with Russia as its opponent. In 2000, the president of this republic sent a letter to his colleague in Switzerland, explaining that the republic was a successor to the former Soviet Union and, as such, a High Contracting Party to the four Geneva Conventions and Protocol I. The republic also claimed successor status with respect to the declaration under Article 90 of Protocol I by which the Soviet Union in 1989 had accepted the competence of the International Humanitarian Fact-Finding Commission, and it invoked this declaration against Russia, itself doubtless a successor to the Soviet Union. On these grounds, the president asked the Swiss president to order the FactFinding Commission to instantly start an inquiry into the serious violations of the Conventions and Protocol I allegedly committed and being committed by the Russian armed forces. The Fact-Finding Commission is an independent body. Yet, the Swiss federal department acts as its secretariat. Given this symbiosis, the letter of the president of the “Chechen Republic of Ichkeria” was deemed to “have reached” the Commission – under its rules, a prerequisite for any activity of the Commission. This confronted the Commission with the need to determine whether the “Chechen Republic of Ichkeria” actually existed as an independent State. In view of that republic’s almost total lack of international recognition, the Commission concluded that the republic did not so qualify. It therefore could not be regarded as an independent party to the Geneva Conventions and Protocol I, nor could it avail itself of the Russian declaration under Article 90. In my capacity as president of the Commission, it was my task to convey this negative message to their representative for international legal affairs (who happened to be our colleague Professor Francis Boyle, in Illinois, United States of America). Our letter added that if so requested, the Commission would be willing to try and find out whether Russia accepted to have certain allegations of serious violations of IHL investigated by the Commission, but then on the assumption that they might have occurred in a situation of internal, rather than international, armed conflict. This obviously being the opposite of what Chechnya had hoped to achieve, Professor Boyle’s reply confined itself to an expression of thanks for our reaction, 4

5

The Soviet Union made the declaration under Art. 90 simultaneously with its ratification of Protocol I. In 1991, Russia succeeded to the Soviet Union, continuing its recognition of the competence of the Fact-Finding Commission. Information about the Commission is available on its website: http://www.ihffc. org.

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adding a long catalogue of alleged violations. The only thing the Commission could do was to place the correspondence in the archive. 3

Kosovo

An affair of a totally different order was the so-called Operation Allied Force: the series of attacks from the air on targets in the territory of Yugoslavia, carried out by ten NATO member States from 24 March 1999 to 9 June 1999 – unfortunately, coincident with the worldwide celebration of the Centennial of the Hague Peace Conference of 1899. What kind of operation was it, and what law was applicable? Much has been written about these questions. Just to sum up: it was a NATO operation, not entirely disengaged from the Security Council but not officially condoned by it either, and the operation was launched when president Milosevic had rejected a series of peremptory demands relating to the treatment of the Kosovar population. 3.1

Case before the International Court of Justice

Neither NATO nor any of its member States regarded themselves as being “at war” with Yugoslavia in the classical sense: they envisioned the operation as an intervention to protect a population threatened in its fundamental human rights, nay, its very existence: an act of humanitarian intervention, in other words. Not agreeing with this assessment, Yugoslavia on 24 March 1999 declared a state of war. And on 29 April 1999, with the aerial bombing actions going on unabated, it applied to the International Court of Justice, requesting the Court to condemn the participating NATO members for their violation of its territorial sovereignty as well as for a long catalogue of violations of IHL. It also requested the Court to indicate preliminary measures; a request the Court rejected by its Order of 2 June 1999, for want of prima facie jurisdiction. The Court remained seised of the case, however, and this situation persists to this day, with Yugoslavia now dragging its feet in the procedure. The Court’s order rejecting the request for preliminary measures emphasises the obligation of “all parties appearing before it [to] act in conformity with their obligations under the United Nations Charter and other rules of international law, including humanitarian law.” This is an interesting point. IHL is a body of law applicable in situations of armed conflict. Obviously, by including IHL in this paragraph the Court indicated that in its perception, Operation Allied Force brought about a situation of international armed conflict, no matter what names parties wished to attach to it. Nor could there have been any doubt about this qualification of the situation from the moment Yugoslavia had declared war, on 6 7

Order, paras. 30, 41. Ibid., para. 19; my emphasis.

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24 March 1999: Common Article 2 of the Geneva Conventions specifies that the Conventions apply “to all cases of declared war … even if the state of war is not recognized by one of [the parties].” This being the case, our question is: what rules of IHL were applicable? Here, one should distinguish between the participating member States. For the overwhelming majority, Protocol I was the primary source of their obligations. For the United States, not a party to that Protocol, it was customary law. Fortunately, this has largely been codified in Protocol I; but unfortunately, not everybody agrees on the customary character of the same rules. The attack of 23 April 1999 on the television and communications centre in Belgrade is a case in point. Both the choice of this object as a target of attack and the number of civilian casualties it entailed have been a bone of contention ever since. In effect, this and other questionable incidents were brought up in several other international forums as well. As mentioned, the actions were coincidental with the Centennial of the Hague Peace Conference, and this was officially celebrated on 18 and 19 May 1999 in The Hague, at the Peace Palace, and from 22-25 June 1999 in St. Petersburg. Especially on the latter occasion, a large number of Russian and other likeminded speakers denounced Operation Allied Force both as an act of aggression in violation of the UN Charter, as well as for its many alleged violations of IHL. 3.2 The ICTY Prosecutor Takes an Interest Again in The Hague, at a stone’s throw from the Peace Palace, the International Criminal Tribunal for the former Yugoslavia has its seat in a building that is known to the local populace as the Aegon building (after the insurance company that was its previous occupant). The tribunal has jurisdiction over serious violations of IHL that occurred in the territory of the former Yugoslavia since 1 January 1991, a period that includes 1999. In effect, on 24 May 1999, with Operation Allied Force still in progress, the Prosecutor of the ICTY issued a first indictment against Milosevic, for crimes against humanity and violations of the laws or customs of war that were asserted to be occurring under his responsibility in the autonomous province of Kosovo. The Prosecutor was equally keenly interested in NATO’s activities: from the outset, she and her staff paid close attention to the events of the bombing campaign. This, of course, not with a view to the possible responsibility of NATO or any of the participating member States for any violations of IHL that might occur: the tribunal has no jurisdiction over matters of State responsibility. In the 8 9

On the Centennial, see F. Kalshoven (ed.), The Centennial of the First International Peace Conference: Reports & Conclusions (2000). Responsibility of a State “for all acts committed by persons forming part of its armed forces” is already expressed in Art. 3 of the 1907 Hague Convention Respecting the

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end, the Office of the Prosecutor had collected enough information to warrant a serious internal discussion about possible further steps in relation to certain incidents, including the intentional attack on the TV station. Obviously, this issue was fraught with political danger. The attack had been carried out by American planes, and any attempt to start a procedure that might involve American personnel could be expected to meet with strong opposition, if not disbelief and outright rejection, in that country. To sort matters out, the Prosecutor in May 2000 established from among her staff a committee to review the NATO bombing campaign, and this committee on 8 June 2000 published its final report. “On the basis of information available” it recommended “that no investigation be commenced by the [Office of the Prosecutor] in relation to the NATO bombing campaign or incidents occurring during the campaign.” Crucial to arrive at this recommendation had been the conclusion that the level of criminal intent required for a serious violation of IHL was not prima facie apparent in any of the incidents, including the attack on the TV station. Accepting this recommendation, the Prosecutor decided that no investigations would be opened in the matter of Operation Allied Force. 3.3 The Bankovic Case before the European Court of Human Rights The attack on the TV station once again became the subject of legal scrutiny when on 29 October 1999, victims and relatives of deceased victims of the attack lodged a complaint with the European Court of Human Rights, at Strasbourg. The complaint was addressed against all European NATO countries, and, obviously, it was not about violations of IHL but of human rights. In view of its importance, the Bankovic case (named after the first applicant) was decided by the Grand Chamber of the Court. The case hinged on jurisdiction. The damage might have been done by NATO and, with that, plausibly under the responsibility of its member States, but it was the result of bombs dropped on the territory of Yugoslavia, not itself a party to the European Convention on Human Rights. While in an earlier case (Loizidou), the European Court had held a State responsible for events outside its territory because that State was deemed to have had “effective control” of the locality where the events had occurred, this time

10

11 12

Laws and Customs of War on Land (Convention IV). The provision is repeated in Art. 91 of Protocol I. Final Report to the Prosecutor by the committee established to review the NATO bombing campaign against the Federal Republic of Yugoslavia, 8 June 2000, 39 ILM (2000) p. 1257, para. 91. See also W.J. Fenrick, “The Law Applicable to Targeting and Proportionality After Operation Allied Force: A View from the Outside”, 3 YIHL (2000) pp. 53-80. Bankovic, et al., v. Belgium, et al., Application no. 52207/99, decided 12 Dec. 2001. Loizidou v. Turkey judgment of 23 March 1995 (preliminary objections), Series A no. 310.

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it argued that the Convention “was not designed to be applied throughout the world, even in respect of the conduct of Contracting States.” Since Yugoslavia clearly fell outside “the legal space (espace juridique)” of these States, the Court found that it was not: persuaded that there was any jurisdictional link between the persons who were victims of the act complained of and the respondent States. Accordingly, it is not satisfied that the applicants and their deceased relatives were capable of coming within the jurisdiction of the respondent States on account of the extra-territorial act in question.

By its decision of 12 December 2001, the Court unanimously declared the application inadmissible. The decision in Bankovic does not determine whether the fact that IHL was applicable to the attack on the TV station precluded application of human rights law. The most one can say is that, fortunately, the European Court does not rest its decision on incompatibility of the two regimes. In effect, this point was at issue in the next affair on my list. 4

Guantánamo Bay

In 2001, in instant response to the terrorist attacks of the 11th of September, the United States and its allies launched a massive attack on the forces of the Taliban government and Al Qaeda in Afghanistan. Thousands of Taliban and Al Qaeda combatants surrendered or were captured. The captives deemed most dangerous were transferred to the U.S. Naval Base at Guantánamo Bay, Cuba. This time, the qualification of the situation as an international armed conflict might seem obvious. No-one outside the United States doubted for a moment that an invasion of the type and scale as carried out by the U.S.-led coalition amounted to an international armed conflict. Yet, the U.S. authorities were initially inclined to reject this classification. I recall a TV news item where we saw President Bush making a statement to this effect, only to be followed instantly by a spokesperson for the ICRC who, standing in front of headquarters in Geneva, solemnly proclaimed that the conflict was international, the Geneva Conventions applicable, and all combatants entitled to prisoner-of-war status. Soon, however, the U.S. authorities too acknowledged that the situation amounted to an international armed conflict and that IHL, including the Geneva Conventions, was applicable. Yet, this made no difference for the detainees at Guantánamo Bay: on the argument that they were unlawful combatants, they were deemed to fall outside the scope of application of the Prisoners of War Convention. 13

Bankovic, para. 82.

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In American jurisprudence, “unlawful combatant” is a magic term: combatants so qualified are beyond the pale and, although the ICRC may be admitted to visit them, they should not expect any protection from the U.S. courts. In respect of the detainees at Guantánamo Bay, this matter was settled when a federal appeals court on 11 March 2003 opined that all U.S. courts lacked habeas corpus jurisdiction in regard of these people: while they might be in the power of the United States, they happened to be outside U.S. sovereign territory and within the sovereign territory of Cuba. This might be the position according to American jurisprudence, but the Inter-American Commission on Human Rights thought otherwise. On 12 March 2002, it wrote the U.S. Government that after careful deliberation it had: decided during its 114th regular period of sessions to adopt precautionary measures, according to which we ask Your Excellency’s government to take the urgent measures necessary to have the legal status of the detainees at Guantánamo Bay determined by a competent tribunal.

Needless to say, the response of the Government was negative. By its letter dated 12 April 2002, it rejected the request of the Commission. One argument, of particular interest for us here, is that the Commission lacked “the requisite jurisdictional competence to apply international humanitarian law, including the 1949 Geneva Convention on prisoners of war … as well as customary international humanitarian law.” For this argument, the Government sought reliance in the fact that the InterAmerican Court of Human Rights in a case brought by Colombia had accepted that State’s preliminary objection against the fact that the Commission in a contentious case involving an individual complaint had not merely referred to certain rules of IHL as means to interpret provisions of the American Convention, but had directly applied those rules against Colombia. Clearly, however, the scope of the Court’s judgment in that case is limited to the competence of the Commission in contentious cases (which may end up at the Court) and does not affect the broad powers of the Commission in other cases. It was these broad powers that were at issue in the Guantánamo Bay case. So, the U.S. argument was flawed from the outset. However, in the Government’s line of thinking, the next step was the argument that the Commission by its decision had actually applied IHL. As it wrote, the case was not about human rights:

14 15 16

Khaled A.F. Al Odah, et al., v. United States of America, et al., No. 02-5251, consolidated with Nos. 02-5284, 02-5288. Information about the Commission’s attempts and the U.S. Government’s response is on file with the author. Las Palmeras, Preliminary Objections, 4 Feb. 2000, Series C, No. 66.

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Rather this case is about the detention of captured enemy combatants who took part in hostilities during an armed conflict – an armed conflict that continues at this time. It involves solely the interpretation and application of specific articles of the Geneva Convention and related customary international humanitarian law, neither of which lies within the scope of the Commission’s competence. In order to request provisional measures in this case, the Commission necessarily has had to interpret and apply humanitarian law, specifically Article 5 and other provisions of the Geneva Convention – a body of law separate and distinct from the American Declaration and the body of human rights law.

Two comments. For one thing, it is incorrect to read into the Commission’s request a direct application of IHL. For another, and more importantly: while in the Commission’ eyes, interpretation of applicable human rights law (such as the prohibition on arbitrary detention) in situations of armed conflict requires looking for guidance to the adjacent and partially overlapping body of IHL, the U.S. Government regards IHL as lex specialis rigorously separated from human rights law. To revert to the Government’s argument: “this case is about the detention of captured enemy combatants … It involves solely the interpretation and application of … international humanitarian law.” (my emphasis) To me, the Government’s line of argument is antiquated. Half a century ago, Jean Pictet, famous top lawyer of the ICRC, defended the separate existence of the two bodies of law for fear of contamination of IHL with the pernicious political influences at work in the sphere of human rights law. But even at the time, some of his colleagues, with Claude Pilloud in the forefront, co-operated actively with Sean McBride, the then Secretary-General of the International Commission of Jurists – geographically not that far from the Committee’s headquarters in Geneva. A simple comparison of the Universal Declaration of Human Rights, of 1948, with Article 3 common to the Geneva Conventions, of 1949, will suffice to prove the point. And since those early days, the awareness has grown that in the substantive field, there is much that binds the two bodies of law together. It has become obvious as well that in matters of compliance, human rights organs can contribute a great deal to the enforcement of international human law. In effect, the IACHR is an early and outstanding example of this modern co-operation. To the U.S. Government, on the other hand, to pass from humanitarian law to human rights law appears to present an insurmountable hurdle. It is a cause of serious regret that a leading country like the United States takes such a retrograde position in a matter of such vital importance for the implementation and enforcement of IHL.

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Nicaragua, Tadić, Blaškić

Next on my list are some cases where international judicial bodies had to determine whether a prima facie internal armed conflict could be regarded as international as a consequence of the involvement of another State. The International Court of Justice in Nicaragua asked itself “whether or not the relationship of the contras to the United States Government was so much one of dependence on the one side and control on the other that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government.” Having examined the available evidence, it answered the question in the negative. It added that to hold the United States legally responsible for the contras’ violations of IHL “it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.” Wrong, opined the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia in the Tadić case: the proper standard is not “effective” but “overall” control. It presents this as a less exacting standard than the “effective control” standard of the ICJ: the ICTY standard does not require “the issuing of specific orders by the State, or its direction of each individual operation,” and it is satisfied when that State “has a role in organizing, coordinating or planning the military actions” of a given armed group. The ICJ in Nicaragua did not discuss the involvement of the United States with an eye to the possible internationalisation of the prima facie internal armed conflict; and apart from that, the outcome of its deliberations was negative. For the Appeals Chamber in Tadić, on the other hand, the point at issue was precisely whether for its purposes, it could regard the prima facie internal armed conflict between Bosnian Muslims and Bosnian Serbs as an international armed conflict on account of the level of involvement, or “control”, of Belgrade; and this question the Chamber answered in the affirmative. The ICTY Appeals Chamber has since applied the same standard in its judgment of 20 February 2001 in the Ćelebići case. Although the setting was the reverse from Tadić, with Bosnian Muslims and Croats on trial for the maltreatment of Bosnian Serb prisoners, the involvement of Belgrade in the conflict once again led to the same conclusion that the conflict could be regarded as international. And a Trial Chamber has applied the same standard in Blaškić, where on the face of it, the armed conflict was between Bosnian Croats and Muslims but Zagreb’s “overall control” was deemed to have turned it into an international 17 18 19

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, paras. 109, 115. Judgment of 15 July 1999, paras. 131, 137. Judgment, para. 50.

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armed conflict. I particularly like the way that Trial Chamber, in its judgment of 3 March 2000, addresses the matter of who calls the shots here: … the parties to the conflict may not agree between themselves to change the nature of the conflict, which is established by the facts whose interpretation, where applicable, falls to the Judge … it is this Trial Chamber which is responsible for evaluating the facts before it and determining the true nature of the conflict.

So far so good. Yet, several questions remain. First, does this ICTY jurisprudence add a new category to the situations recognized in Common Article 2 as constituting an “international armed conflict”? Second: has the “overall control” standard achieved the status as customary law? Third, and most importantly, what is the “true nature” and scope of this jurisprudence? My answer to the first question is negative: the ICTY jurisprudence has not created a new category of international armed conflicts. Logically, recognition of a given level of third-party intervention as grounds for turning a prima facie internal armed conflict into an international one, implies regarding that third party as an effective party to the conflict. In other words, what the ICTY is doing is defining, for the purposes of its procedure, a level of involvement that makes a State qualify as a party to an armed conflict even though this is being waged outside its territory. This matter of “internationalised internal armed conflict” had remained unresolved in Protocol I, due to the unwillingness of the negotiating parties of the 1970s to address the issue. Although aware of the problem, the overwhelming majority of the delegates were more interested to discuss the matter of wars of national liberation. Then, has “overall control” become a standard of customary law? We have the arguments of just one international tribunal, in relation to part of just one theatre of armed conflict, and all of this in the face of the earlier dictum of the ICJ, which has not yet had an opportunity to respond in kind: it certainly is not bound by ICTY precedent, as the ICTY was not bound by the ICJ dictum. Perhaps in future, for example in a case before the International Criminal Court, the issue may arise again. The ICC may then examine the facts of the case, conclude whether for purposes of application of one or other article of its Statute it wants to regard the intervening State as a party to the conflict, and define an appropriate standard accordingly. This leads me to the third question: what is the scope of the ICTY jurisprudence? Let us have a look at what exactly the Chambers were doing. On trial were Bosnians, for acts done in Bosnia-Herzegovina and against Bosnians. No nationals of Yugoslavia or Croatia were on trial, nor, obviously, was any State party to the conflict. Nonetheless, it was the Trial Chamber’s assertion that while 20

Judgment, para. 82.

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the States parties to the conflict might be quibbling about its status, it was for “this Chamber” to evaluate the facts and “determin[e] the true nature of the conflict.” In my assertion, the ICTY Chambers have done no more (and no less) than express a well-reasoned opinion on the effects of one State’s behaviour on the criminal liability of non-nationals on trial for acts done outside that State’s territory. The effect of their dicta is limited to the confines of the criminal procedures. Within those confines, they may have determined the nature of the armed conflict they were examining as international (and thus were able to apply provisions that require a situation of international armed conflict), but this is a far cry from asserting that the ICTY could establish, with outside effect, that Yugoslavia and Croatia have actually been parties to the armed conflicts in Bosnia-Herzegovina. In this respect, it will be interesting to see if any other jurisdictions will rely on the ICTY jurisprudence, e.g., if someone might start a civil action for damages against Milosevic or Mladić. I do not see this happening any time soon in my country, the Netherlands. The New York court, applying the Alien Tort Act, might be a more plausible forum. Or, what about the case of Bosnia claiming damages from Yugoslavia for genocide; do we believe that if ever it comes to a judgment, the ICJ will simply accept that the ICTY has determined the true nature of the conflict? Then, outside the Yugoslav context: do we expect that henceforth, our political leaders, or the Security Council, will fine-tune their policies in relation to situations of prima facie internal armed conflict in light of their assessment whether a third party exerts “overall” or merely “effective” control over events in the country that is the theatre of the conflict? Just a few questions: in my estimate, the answer in each case will be negative. 6 War on Terror A situation that raises far more questions is the “war on terror”, declared by President Bush a day or so after “9/11”. That “there is a war on” is beyond doubt; it actually appears to grow in intensity by the day. It displays many of the features of traditional war, e.g.: psychological warfare, dissimulation, disinformation (or lying), measures like the seizure of enemy capital, etc.; even, violent action, but this only sporadically and unpredictably. But completely lacking is an identifiable State party on one side, and so is territorial definition of the conflict. The war on terror therefore appears to be not just an aggravation but a sort of institutionalised version of the Lockerbie-type terrorist activities of earlier decades. If it is correct to regard the war on terror as an institutionalised version of human action and reaction, our automatic reaction is that some legal regime should be applicable to it. Maybe so: I need not solve this riddle. The one point 21

These last few years, the case has not been making any noticeable progress.

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I feel confident to make is that IHL, whether in its conventional or customary manifestation, is unsuited to cover other than isolated incidents of the “war on terror”. Thus, when in the course of their pursuit of the perceived enemy, the United States and its allies undertook massive military action against the regime in Iraq, resulting in the occupation of that country, that episode was governed by IHL, notably by the rules applicable to international armed conflict. The invading parties, which since have turned into reluctant occupying powers, were and are bound to respect the Geneva Conventions of 1949 and the rules of customary IHL applicable in international armed conflict. They may largely have done that, with the blatant exception of the apparent total lack of preparation for the phase after what was styled the liberation of the Iraqi people. The disastrous effects of this utter disregard of the obligations of an occupying power are now visible every day. The many other overt or covert actions undertaken in the name of the “war on terror” do not fit very well under the heading of IHL, and they may more properly be dealt with under headings such as (international or domestic) criminal law, and human rights law. I leave it at that. 7

Conclusion

A few words in conclusion. Apart from the “war on terror”, I do not seem to have uncovered anything new or customary. Yet, there is one development in the sphere of IHL that is unmistakably new, and it points in a direction diametrically opposed to the one we are considering here. It is the tendency to look at the body of IHL as one whole that is applicable in any situation of armed conflict. This may be an application mutatis mutandis, but basically, it implies the abandonment of the various distinct types of armed conflict the international legislators had so cleverly devised. A glimpse of this tendency could already be noticed in Nicaragua, where the ICJ held the principles set forth in Common Article 3 of the 1949 Conventions applicable as customary law in any armed conflict. In a similar vein, the ICTY on several occasions has applied certain sets of rules without determining first whether the particular situation qualified as internal or international armed conflict. In international lawmaking as well, this is the new trend. It is especially noticeable in the area of weapons. Already in 1972, Article 1 of the Bacteriological Weapons Convention provides that States parties shall never have “weapons, equipment or means of delivery designed to use [microbial or other] agents or toxins for hostile purposes or in armed conflict.” Under the Chemical Weapons Convention of 1993, not only possession, production etc. are prohibited, but specifically also the use of such weapons (Art. 1(1b), thus reaffirming the obligation embodied already in the 1925 Geneva Gas Protocol). Again, Article 1 of the Ottawa Convention of 1999 provides that no State party shall ever, under any circumstances, “use anti-personnel mines.” And, last but not least, a review confer-

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ence has decided that Article 1 of the Conventional Weapons Convention will be amended, to the effect that the Convention and its Protocols shall be applicable in all situations of armed conflict. No trend without counter-trend: there is of course the abominable ICC Statute, with its Article 8 on war crimes rubbing in that the distinction between international armed conflicts, Protocol II armed conflicts and Common Article 3 armed conflicts is very much alive. Oh well, we will live with that, and hope that the ICC in the course of time will find a way to circumvent this rigid posture.

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By virtue of the twentieth, Norwegian, ratification of the amended text, this will enter into force in May 2004.

PART 8 humanitarian law and criminal law

Chapter 42 Some Observations on the Road to Rome*

To be invited to speak on the occasion of a day devoted to the memory of the late Professor Bert Röling is a great honour. It is also a challenge, nay, a daunting task. In this awareness I set myself to make a few observations about what I have styled “the road to Rome”. This road has been long and winding, and, for such a long road, sparsely marked with milestones: a modest one shortly after the Great or First World War; a cluster of major ones in the aftermath of the Second World War – with Röling figuring prominently in one of these; in 1974 a hardly noticeable one (the so-called definition of aggression); and finally, after the breakthrough of 1989 with its short-lived “New World Order”, a cataract of events tumbling one over the other, with the adoption of the Rome Statute in 1998 marking a provisional end of the road. Its further stretches are, so to speak, under construction. To tell the tales of all the adventures the travellers met on the road would be beyond me, not merely for reasons of time. I therefore will confine myself to some salient features that are somewhat closer to my own sphere of competence than the specific criminal-law aspects. First, then, why was construction of the road undertaken at all? Military commanders always had the power to deal with the odd violator of the laws and customs of war. In 1899, when the First Hague Peace Conference drafted the Regulations on the Laws and Customs of War, the subject was not even mentioned: the only thing the drafters had to say about implementation was that contracting States should “issue instructions to their armed land forces, which shall be in conformity with” the Regulations. And in 1907, their successors at the Second Hague Peace Conference confined themselves to adding a provision

*

1

Published earlier in War, Crime and War Crimes – The Röling Legacy, Proceedings of the Röling Commemoration Conference, University of Groningen, 17 June 1999, pp. 17-32. The Hague Regulations are an annex to the Hague Convention (II) Respecting the Laws and Customs of War, adopted on 29 July 1899 by the International Peace Conference (which subsequently became known as the First Hague Peace Conference); text in Schindler & Toman, The Laws of Armed Conflict, 3rd ed. (1988) p. 63.

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about the belligerent parties’ financial liability for any such mishaps caused by members of their armed forces. The first official plan for an international war crimes tribunal dates from 1919. It is included in the report of the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, presented in March of that year to the Preliminary Peace Conference at Versailles. Why such a report: had the war been so much worse than previous ones? The report makes clear that this was indeed the perception. On the question of responsibility for the war, it speaks of “a policy of aggression, the concealment of which gives to the origin of this war the character of a dark conspiracy against the peace of Europe.” And on the conduct of the war, the report has this to say: In spite of the explicit regulations, of established customs, and of the clear dictates of humanity, Germany and her allies have piled outrage upon outrage … It is impossible to imagine a list of cases so diverse and so painful … The facts are established. They are numerous and so vouched for that they admit of no doubt and cry for justice.

In spite of its views on Germany’s “policy of aggression” the Commission came to the conclusion that “[t]he acts which brought about the war should not be charged against their authors or made the subject of proceedings before a tribunal.” But it added that “[i]t is desirable that for the future penal sanctions should be provided for such grave outrages against the elementary principles of international law.” For the outrages against the laws of war, on the other hand, the Commission did propose the establishment of a “high tribunal”, specifying four categories of persons whose outrages should be brought before it, and the law it should apply. The categories of potential defendants included actual perpetrators, those who ordered the crimes, as well as “all authorities, civil or military, belonging to enemy countries, however high their position may have been, without distinction of rank, including the heads of States”, who ordered or failed to prevent or repress violations of the laws or customs of war. (I have greatly simplified the latter, rather convoluted part of the sentence, which even goes on to specify that “it [is] understood that no such abstention should constitute a defence for the actual perpetrators.” The text was definitely a lawyers’ construct.) 2

3 4

Art. 3 of Hague Convention (IV) Respecting the Laws and Customs of War, adopted on 18 Oct. 1907. The Article provides that “A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.” Text in L. Friedman, The Law of War, a Documentary History (1972) p. 842. The full text reads as follows: “who ordered, or with knowledge thereof and with power to intervene, abstained from preventing or taking measures to prevent, putting

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Earlier in its report, the Commission had explicitly rejected the argument of “the alleged immunity, and in particular the alleged inviolability, of a sovereign of a State… [T]his privilege, where it is recognised, is one of practical expedience in municipal law, and is not fundamental. However, even if, in some countries, a sovereign is exempt from being prosecuted in a national court of his own country the position from an international point of view is quite different.” – All this they wrote eighty years ago, long before the names of General Pinochet and President Milosevic had ever been heard. Few words sufficed for the Commission to define the law the tribunal should apply: it would be “the principles of the law of nations as they result from the usages established among civilized peoples, from the laws of humanity and from the dictates of public conscience.” As far as I am aware, this has been the only occasion for the Martens clause in the preamble to the 1899 Hague Convention on land warfare to be proposed as a suitable definition of jurisdiction. It also was a bit too much honour for a text that had been drafted as a compromise formula to bridge, or, rather, to cover up the insurmountable gap between those who claimed combatant status for resistance fighters in occupied territory, and those who were adamantly opposed to such a solution. A text, indeed, which the eminent historian and critical observer of international humanitarian law, Professor Geoffrey Best, in a lecture at Oxford University on the occasion of the commemoration of the 1899 Hague Peace Conference, irreverently but with some justification characterised as a “fudge”. So much for the Commission of 1919. The Peace Conference did not accept its proposals for a “high tribunal”. Yet the Commission qualifies as a (modest) milestone on the road to Rome because it is the first body to have officially recognised that war, and warfare, can be so odious as to require recourse to an international criminal jurisdiction. The next occasion arose during the Second World War. As early as 1942, the Allied Powers formally “place[d] among their principal war aims the punishment, through the channel of organised justice, of those guilty of or responsible for” the crimes Germany was committing in the occupied territories. Although this did not necessarily imply that reprisals would not be resorted to in the course of the war, the Allied Powers apparently did attach that consequence to their policy decision. In this vein, the Soviet Government on one occasion expressly

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an end to or repressing, violations of the laws or customs of war (it being understood that no such abstention should constitute a defence for the actual perpetrators).” The lecture was given at Oxford University on 29 April 1999. In its published version, the qualification of the Martens clause has been somewhat softened to “a compromise or, some might say, fudge …” Peace conferences and the century of total war: the 1899 Hague Conference and what came after, in 75 International Affairs (1999) pp. 619634, at p. 627. Interallied Declaration on Punishment for War Crimes, signed in London on 13 Jan. 1942.

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stated that in the face of new crimes committed by Germany, among others against Russian prisoners of war, it would refrain from reprisals against German prisoners of war, and those responsible for the crimes would be punished after the war. I mention this, not only because of my long-standing affinity with the subject of belligerent reprisals, but because it illustrates what to my mind constitutes a common element in reprisals and post-war punishment, viz., frustration of belligerent parties at their lack of power to effectively stop their adversary in his criminal conduct. (I just add that all this had nothing to do with the bombing campaigns, pursued on both sides with occasional more or less explicit reference to the doctrine of reprisals – and subsequently not included among the war crimes held against the German leaders.) As a next step, the Allied Powers (renamed meanwhile as the United Nations) in 1943 set up a multi-country UN War Crimes Commission, to “investigate and record the evidence of war crimes, identifying where possible the individuals responsible” and to “report to the Governments concerned cases in which it appeared that adequate evidence might be expected to be forthcoming.” In 1944 this was followed by the establishment of the Far Eastern and Pacific SubCommission, thus including Japan in its sphere of attention. These bodies had to do their work, at least initially, while the war was going on. Then, in May 1945, with Germany’s surrender and occupation, justice could have its way, no longer hampered by the events of war. Accordingly, on 8 August 1945, the Big Four concluded an Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, with as its central provision the decision to establish “an International Military Tribunal for the trial of war criminals whose offenses have no particular geographical location whether they be accused individually or in their capacity as members of organizations or groups or in both capacities.” Annexed to the Agreement was the Charter for the International Military Tribunal, or the Nuremberg Tribunal. Soon thereafter, Japan surrendered as well and was occupied by American forces. With just one Occupying Power, a different procedure was followed: General MacArthur, in his capacity as Supreme Commander for the Allied Forces, on 19 January 1946 decreed the establishment of an International Military Tribunal for the Far East. Annexed was once again a Charter, “approved by me [i.e. MacArthur] this day.” Given this difference in parentage, it seems warranted

7 8

9 10

The Third Molotov Note on German Atrocities, London, 1942. See, on this episode, this author’s Belligerent Reprisals (1971) p. 214. On the U.N.W.C.C. see: History of the United Nations War Crimes Commission and the Development of the Laws of War (1948); see also: M.W. Mouton, Oorlogsmisdrijven en het Internationale Recht (War Crimes and International Law) (1947) p. 172. Text in op. cit. note 3, p. 883. Ibid., p. 894.

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to qualify the Tokyo War Crimes Tribunal as the stepsister of the Nuremberg Tribunal. The two stepsisters had much in common. They each were internationally composed, with among the members of the Tokyo Tribunal, Justice Röling, member for the Netherlands. They each had jurisdiction to deal with crimes against peace, war crimes and crimes against humanity. A slight difference could be perceived in the jurisdiction ratione personae, with the Nuremberg Tribunal specifically having jurisdiction over Heads of States (and other responsible officials), whereas the Tokyo stepsister’s Charter did not include the Head of State among the officials who could be held responsible for their crimes. This obviously reflected the American policy to leave the Emperor untouched. Already at this stage it may be concluded, by way of interim conclusion, that milestones had been erected on the road to Rome, and milestones of a different calibre than their 1919 predecessor. It is also obvious that the reason or, rather, the emotion leading to the new steps was similar to that of 1919: the perception of an overwhelming complex of outrages against basic precepts of civilisation and humanity, both in the shape of open aggression and of all kind of war connected criminality. This combination of perceived unjustified resort to armed force and systematic, structural violation of the basic precepts of civilised warfare may easily lead to a blurred picture when the observer’s judgement of the way the war is waged is tainted by his judgement about the illegality of the recourse to war. In the charters and judgements of the Nuremberg and Tokyo Tribunals this effect is fortunately avoided. The charges on the different counts are clearly separated, and so are the judges’ arguments and conclusions on each separate count. That the matters of jus ad bellum and jus in bello can become fatally entangled is not only evident from much of the media renderings of contemporary events. It may also be demonstrated with the Rauter case, decided in the Netherlands in 1949. As Higher S.S. and Police Leader and General Commissioner for Public Safety, Rauter had had to deal with acts of resistance, and retaliatory killings had been among his policies in reaction to these acts. In justification of these measures, his consistent argument was that the in his eyes illegal policy of the Dutch government-in-exile in inciting the population to armed resistance had justified his counter-measures as reprisals. While this was a jus in bello argument, at one stage of the proceedings a member of the Special Court of Cassation, Professor Verzijl, confronted Rauter with the question whether he had never realised that Germany had been the first to act illegally: it had started an aggressive war and applied unlawful methods of warfare right from the beginning of the war, “so that it was not Germany which had a right to take reprisals against the Netherlands, but the Netherlands against Germany.” The reference to Germany’s aggression

11

See op. cit. note 7, p. 250.

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in my eyes represented an inadmissible admixture of a jus ad bellum element to the argument. I return to the international plane and the two stepsister Tribunals. As noted, crimes against peace were included in their jurisdiction. I recall that the 1919 Commission, finding no basis for adjudication of aggressive war at that stage, had suggested that “for the future penal sanctions should be provided for such grave outrages against the elementary principles of international law.” Had this now been done: had aggression become an individually punishable crime? Both Tribunals wrote lengthy opinions about this issue, and both with a positive outcome. Not that “penal sanctions” had actually been provided, but this minor defect could not keep the Tribunals from concluding that the international community had meanwhile reached the stage where flagrant, massive aggression was a criminal act entailing individual criminal responsibility. It was at this point that Justice Röling fell out with his colleagues on the Tokyo Tribunal. They, and the Nuremberg Tribunal as well, had made much of the Briand-Kellogg Pact, or Pact of Paris, of 1928, with its central clause that “the settlement and solution of all disputes or conflicts of whatever nature, or of whatever origin they may be, which may arise between [the contracting States], shall never be sought except by pacific means.” This, they argued, amounted to the outlawry of war, to the point of including the criminal liability of individual persons for their involvement in aggressive war. Röling in his dissenting opinion refers to an author, Sheldon Glueck, who in 1946 had written that “the Pact of Paris may, together with other treaties and resolutions, be regarded as evidence of a sufficiently developed custom to be acceptable as international law.” But, Röling replies, this was misconstruing custom as a source of international law in the sense of Article 38 of the Statute of the International Court of Justice: “Custom can indicate law if it shows behavior thus accepted. The only custom referred to in Glueck’s argument is the custom to use more or less empty phrases where real issues failed to materialize.” And he concludes that the actual practice of States since 1928 did “not support the new conception at all”: in effect, he mentions numerous instances that flatly contradicted it (but which the Tribunal decided not to admit as evidence). I take this opportunity to express my total sympathy with Röling’s rejection of this customary law construction. It is a matter of some regret that today, the practice is more widespread than ever for authors and courts to declare that particular behaviour is required under customary international law on the flimsiest of excuses, or with no excuse at all. I should add that Röling went on, first, to reject the defence argument of non-retroactivity of penal law: in his view this was “not a principle of justice but a rule of policy, valid only if expressly adopted … [and] not necessarily applicable in present international relations.” Next, he held that the introduction of 12

Röling & Rüter (eds.), The Tokyo Judgment, Vol. II (1977) p. 1056. The book by Glueck is The Nuremberg Trial and Aggressive War (1946).

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the “crime against peace” in the Nuremberg and Tokyo Charters was justified as a permissible criminalisation of dangerous conduct, along the same lines as the political crime in domestic law “where the criminal is considered an enemy rather than a villain and where the punishment emphasizes the political measure rather than the judicial retribution.” This reasoning led him to conclude that “no capital punishment should be given to anyone guilty of the crime against peace only.” And he noted that the Nuremberg Tribunal apparently had followed the same train of thought in meting out only prison sentences to the accused Hess, Doenitz, Raeder, Funk and Von Neurath. Apart from crimes against peace, the Nuremberg and Tokyo Tribunals both had jurisdiction over war crimes and crimes against humanity. I pass these grounds of jurisdiction over in silence, except for noting that in contrast with the 1919 proposal, the respective Charter provisions define these crimes in some detail. I also need to say little about the Genocide Convention of 1948. While it does make genocide a treaty-based international crime, it cannot in my eyes qualify as more than a minor milestone on the road to Rome because its provision on jurisdiction, in Article 6, pays mere lip service to the notion of international adjudication. Always in the same post-World War II period, I mention the four Geneva Conventions of 1949 for the protection of war victims. Each of these Conventions contains detailed provisions on the punishment of so-called grave breaches, and contracting States are obliged not only to enact the requisite legislation for such punishment but to search for and put on trial or hand over to another State, persons alleged to have committed such acts. Two things deserve to be noted here. One is that the provisions on grave breaches have provided the ground for a long dispute between Röling and his compatriot, Rear-Admiral Mouton, who as a member of the Netherlands delegation to the Conference of 1949 had played a crucial role in the drafting of the provisions. For Mouton, there could be no question that the grave breaches provisions implied universal jurisdiction. Röling was equally firmly convinced that this was nonsense and jurisdiction could only lie with States that had a recognised interest in the prosecution of these offences. It appears to me that while Mouton probably held the legally correct view, Röling’s view was the more realistic. Even today, while the whole world may be confirming that grave breaches of the Geneva Conventions fall in the category of offences for which universal 13 14

15

Ibid., p. 1060. Reaffirming the jurisdiction of “the State in the territory of which the act was committed,” the Article adds: “or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.” Text in op. cit. note 1, p. 231. Text in op. cit. note 1, p. 367.

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jurisdiction obtains, practice shows that the actual realisation of this idea encounters enormous difficulties and therefore usually is not even tried. The other thing about the grave breaches provisions in the Geneva Conventions is that they refer exclusively to domestic jurisdiction. There is no reference to the possibility of international tribunals, nor indeed are the offences qualified as war crimes. In effect, it was the Russians who would have seen them so qualified, and the Western world that consistently opposed this suggestion. What became apparent here was that while the prosecution of the Axis war criminals had been pursued with great enthusiasm, the prospect that one’s own future conduct might be qualified thus filled our delegates’ minds with horror. It would be 1977 before the West gave in and Article 85(5) of Additional Protocol I officially proclaimed that “grave breaches of [the 1949 Conventions and the Protocol] shall be regarded as war crimes.” Taking this into account, the 1949 Geneva Conventions cannot be regarded as a milestone on the road to Rome: they are, rather, milestones in their own right, set up on another road but which runs parallel to the road to Rome. After these promising post-war events there followed a long series of largely futile attempts of various United Nations organs to do something about the creation of an international judiciary. Out of all this paperwork I just mention the famous definition of aggression adopted by the General Assembly in 1974: not so much because it provides, as it does, a useful catalogue of possible cases of aggression, but because at the end of the day it leaves to the Security Council to classify as aggression whatever it sees fit. Bill Ferencz, a scholar who has devoted his life to tracing the evolution of the ideas of enforcing international law and an international criminal court, speaks of a “milestone definition”. I have some difficulty with this high praise and would rather characterise it as a mile-pebble (if such a thing is conceivable). The next real milestone occurred in 1989: the year of the fall of the Iron Curtain, a world-shaking event that converted many improbabilities into practicalities. I have in mind one process in particular that started in the wake of the Curtain’s fall: the opportunity offered to – and grasped by – Milosevic to pursue his mischief in what has since become known as the former Yugoslavia. This man, by now a chartered war criminal, in 1989 set in motion a chain of events 16

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Protocol Additional to the Geneva Conventions of 12August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I); text in op. cit. note 1, p. 621. For a complete overview of the history up to 1980, see: B. B. Ferencz, An International Criminal Court – A Step toward World Peace: A Documentary History and Analysis, 2 vols. (1980). GA Res. 3314 (XXIX), 14 Dec. 1974.Text in: B. B. Ferencz, Defining International Aggression (1975); see also, by the same author, Enforcing International Law – A Way to World Peace: A Documentary History and Analysis, 2 vols. (1983). Ferencz (1983) p. 480.

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that has precipitated the final steps that in 1998 resulted in the adoption of the Statute of the International Criminal Court. Already the armed conflict with Croatia provided a long list of alleged war crimes, and the subsequent conflicts in and around Bosnia-Herzegovina clinched matters: there was once again the dual perception of cruel aggression combined with systematic structural violation of basic precepts of human rights and international humanitarian law, as well as the concomitant frustration of the international community at its incapacity to deal with these crimes effectively. The various phases of the ensuing process are fresh in our memories, and there is no need for me to repeat the whole list here. I just mention the decisions by the Security Council, acting under Chapter VII of the United Nations Charter, to establish an International Criminal Tribunal for the former Yugoslavia (May 1993) and another one for the genocidal events in Rwanda (November 1994). Strikingly, although both ad-hoc tribunals were established as a gut reaction to the combined horror of crass recourse to armed violence and gross violations of applicable human rights and humanitarian law, and although certainly part of the events in the former Yugoslavia deserve to be examined under the heading of interstate aggression, neither tribunal was given jurisdiction over the “recourse to violence” aspect. In this respect, it may be felt that the tribunals and the one for 20

S/RES/780 (1992), 6 Oct. 1992, request to S-G to establish a Commission of Experts to examine and analyse information gathered with a view to providing him with its conclusions on the evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law committed in the territory of the former Yugoslavia; S/24657, 14 Oct. 1992, Report of the S-G on the Establishment of the Commission of Experts pursuant to para. 2 of S.C. Res. 780 (1992); S/RES/808 (1993), 22 Feb. 1993, decision “that an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991”; S/25704, 3 May 1993, Report of the S-G pursuant to para. 2 of S.C. Res. 808 (1993), with annexed Statute of the International Tribunal; S/RES/827 (1993); 25 May 1993, decision to establish an international tribunal for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia between 1 Jan. 1991 and a date to be determined by the S.C. upon the restoration of peace and to this end to adopt the Statute of the International Tribunal annexed to the S-G’s Report; S/RES/935, 1 July 1994, request to the S-G to establish a Commission of Experts to examine and analyse information with a view to providing the S-G with its conclusions on the evidence of grave violations of international humanitarian law committed in the territory of Rwanda, including the evidence of possible acts of genocide; S/RES/955, 8 Nov. 1994, decision, having received the request of the Government of Rwanda, to establish an international tribunal for the sole purpose of prosecuting persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 Jan. 1994 and 31 Dec. 1994 and to this end to adopt the Statute of the International Criminal Tribunal for Rwanda annexed hereto.

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the former Yugoslavia in particular, represent an unmistakable step back from the post-World War II precedents. On the other hand, I doubt very much that attribution of jurisdiction over the aggression aspect could have enhanced the latter’s effectiveness, let alone the Prosecutor’s happiness. In effect, the jurisdiction actually allotted to either Tribunal provides enough complications to make their existence far from easy. With respect to the Tribunal for the former Yugoslavia, I note the provision in Article 2 of its Statute on grave breaches of the Geneva Conventions, involving as it does the requirement for the victims of such acts to qualify as protected persons in the strict sense of the Conventions; and the reference in Article 3 to the “laws or customs of war”: intended by the drafters as a reflection of the old Hague law applicable in wars between States, interpreted by the Tribunal as applying to internal armed conflict as well. And for the Rwanda Tribunal, the heavy accent on incitement and conspiracy as elements of genocide, and its lack of power (shared with its sister at The Hague) to inflict the death penalty: a feature that is ill understood in the theatre where it has to operate. The establishment and activities of the two Chapter VII Tribunals have acted as a catalyst for what followed in rapid succession: 1994, the International Law Commission’s Draft Statute for an International Criminal Court; 1995, report of the Ad Hoc Committee set up by the General Assembly on the establishment of such a Court; the same year, establishment of the Preparatory Committee, chaired from the outset and to the very end by Adrian Bos; 1996, International Law Commission Draft Code of Crimes against the Peace and Security of 21

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The difficulties arise in particular under the Fourth or Civilians Convention. Art. 4 provides that the persons protected by the Convention are “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” While the nationality requirement does not usually present any difficulty in classical international armed conflicts, the situation is different in a situation like the one in the former Yugoslavia, where parts of the conflict in Bosnia-Herzegovina are regarded as international whereas as yet no official changes of nationality have been effectuated. The question then arises whether the term “nationality” in Art. 4 of the Convention can bear an interpretation that is more adequate to the situation at issue. ICTY, Case No. IT-94-1-AR72, Decision of the Appeals Chamber on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct. 1995. The decision notes that “[A]s explained by the Secretary-General in his Report on the Statute, [Art. 3] is based on the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land.” The defence argued that the Tribunal therefore “lacks jurisdiction under Article 3 to adjudicate alleged violations in the former Yugoslavia” to the extent the conflict there must be regarded as an internal armed conflict. However, the Appeals Chamber deduced from the Secretary-General’s Report and the debate in the Security Council that Art. 3 of the Statute covers all violations, whether under common Art. 3 of the Geneva Conventions, Protocol II of 1977 or customary international humanitarian law applicable in internal armed conflicts.

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Mankind; April 1998, Draft ICC Statute, consolidated text adopted by the PrepCom; 17 July 1998, the UN Diplomatic Conference adopts the Rome Statute of the International Criminal Court – at long last and at least for the time being, the end of the road to Rome. As provided by the Statute, the ICC has jurisdiction over four categories of crime: genocide, crimes against humanity, war crimes, and aggression. But its jurisdiction over the latter crime is a matter of the future: it requires the previous adoption of a definition of aggression in accordance with the provisions spelled out in the Statute, and this procedure may be expected to take some time. As for war crimes, I highlight two important features. One is the obsessive caution apparent in the text of Article 8, to spell out in minute detail what will – and consequently, what will not – represent a war crime for which one may be brought before the Court. It is certainly not the odd violation of the laws and customs of war the delegates to the Peace Conference of 1899 had in mind when they simply passed over the subject in silence. Even less is it every conceivable encroachment of “the principles of the law of nations as they result from the usages established among civilized peoples, from the laws of humanity and from the dictates of public conscience” (the Martens clause, suggested by the 1919 Commission as the law to be applied by a permanent tribunal). Under the Statute, especially those war crimes will qualify that were “committed as a part of a plan or policy or as part of a large-scale commission of such crimes”, and even then, they have to fit into one of the precise categories enumerated in the Article. And the whole system will probably become even more watertight and risk-proof once the current PrepCom, set up to prepare the actual establishment of the Court, has filled in the “elements of crimes” which, as Article 9 quaintly suggests, “shall assist the Court in the interpretation and application of ” the provisions on its jurisdiction ratione materiae.

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UN Doc. A/CONF. 183/9, 17 July 1998. Art. 5(2) requires the adoption of a provision “in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.” Articles 121 and 123 govern amendment and review of the Statute and require the lapse of a period of 7 years after the entry into force of the Statute before amendments can be introduced or a review conference is convened. The categories are: (a) grave breaches of the Geneva Conventions, (b) other serious violations of the laws and customs applicable in international armed conflict, “within the established framework of international law” (a somewhat enigmatic formula); (c) serious violations of Art. 3 common to the Geneva Conventions, and (d) other serious violations of the laws and customs applicable in armed conflicts not of an international character, once again “within the established framework of international law”. For each category, the Article provides detailed lists of the acts falling under these headings, as well as further clauses defining their applicability.

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The other point I mention is the express inclusion in Article 8 of acts committed in situations of internal armed conflict. This is a step to be most warmly welcomed, and it provides strong support for the developing jurisprudence of the International Criminal Tribunal for the former Yugoslavia. It is particularly satisfying to notice in sub-paragraph 2(f ) that the Statute does away with the stringent requirements for an internal armed conflict of the Protocol II variety and reduces these to the requirement that there must be “protracted armed conflict between governmental authorities and organised armed groups or between such groups.” Much more could be said about the Statute: the relationship of the Court, and notably the Prosecutor, with the Security Council; its complementary character in relation to States’ domestic criminal courts; the general principles of criminal law set forth in Part 3 – the first of which, nullum crimen sine lege, protects potential aggressors until such time as the crime of aggression has effectively been brought under the jurisdiction of the Court. And so on and so forth. But other people have already said a great deal about all these matters and much more will follow. I therefore may leave it at that. I merely wish to note, finally, the tremendous distance travelled since the people of this century set out on the road to Rome, and this not just as a quantity of time elapsed. More important is the striking change in attitude towards the idea, and for a man like Ferencz the ideal, of an international criminal court: from the merest whiff of a suggestion to a broadly carried conviction that the time has come. This was apparent in the important role “civil society” has played in the making of the Statute, and continues to play in the work now underway to bring the Court into being. Its voice was heard loud and clear at the Hague Appeal for Peace, 11-15 May 1999. As part of its Hague Agenda for Peace and Justice for the 21st Century, it decided to start a Global Ratification Campaign for the ICC – at the same time, strikingly, making a plea for humanitarian intervention. The official Centennial of the First International Peace Conference, a governmental meeting on the level of legal advisers which convened at The Hague on 18-19 May to examine the legacy of 1899 under its legislative and normative aspects, likewise took note of the ICC. Its (provisional) conclusions on the theme 26 27

See previous note: items (c) and (d). Protocol II of 1977 supplements Art. 3 common to the 1949 Geneva Conventions and significantly broadens the body of treaty law applicable in internal armed conflict. Art. 1(1) requires for its application an armed conflict that takes place “in the territory of a High Contracting Party between its armed forces and dissident armed forces or organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” Para. 2 adds that the Protocol “shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.”

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of the laws of war, and on the specific aspect of compliance, state rather cautiously that besides “strengthening the machinery for national prosecution of serious violations of the law of armed conflict,” also the “complementary application of the jurisdiction over such crimes by the International Criminal Court, once it has become operational”, may contribute to enhanced compliance. These as the other conclusions of the Hague Centennial are provisional, since they will again be on the agenda, and may be improved or reinforced, at the next occasion in the Centennial celebration, viz., the meeting on the same governmental expert level which is going to convene at St. Petersburg from 22 to 25 June and will focus on implementation in particular. Always under the same heading of public support for the ICC, I finally mention the 27th International Red Cross and Red Crescent Conference, to be held in Geneva in November of this year, the tenth lustrum of the Diplomatic Conference where the West maintained such a strong opposition to the notion of war crime. Now in a very different mood, the conference, with Red Cross/Red Crescent as well as government delegates, is expected to adopt a Plan of Action which sets as one of its goals the universal acceptance of the Rome Statute as one of a list of international humanitarian law treaties. The draft Plan of Action specifically urges States which are favourable to these instruments but not yet formally bound by them, to do what is necessary to become party. And States which have reservations about one or another of the treaties are urged to reconsider their position, “with a view eventually to adhering thereto, or at least to contributing to the realisation of their objectives.” So, what lies ahead? It seems a safe bet that at some not too distant date, the PrepCom will successfully conclude its work and the number of sixty States party to the ICC Statute is reached, thus enabling the Assembly of State Parties to actually create the Court: election of judges and, perhaps more difficult, finding the person who wants to assume the function of Prosecutor. And when all this is done, may we then expect our leaders to think twice before they enter upon a course of aggression, genocide, crimes against humanity, war crimes? In other words: will the ICC have a deterrent effect? This is not a new question: it was asked me when I was functioning as the chairman of the Commission of Experts preceding the International Criminal Tribunal for the former Yugoslavia. At the time, early 1993, my answer was always that I did not see any sign of such an effect. Nor have I seen it, up to this day, as an effect of the activities of this Tribunal or of its sister at Arusha. And, although it cannot be excluded that the ICC by its very existence will exert such a deterrent effect on at least some persons, I am afraid that more often than not, persons embarking on such a course of mischief are either rationally or emotionally prepared to accept the risks involved. 28

The Centennial texts are available on Internet: http://www.minbusa.nl/english/ Conferences/c_peace1 .html [NB no longer available]

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This does not imply that the ICC will be a futile exercise, or that the ad-hoc Tribunals are: far from it. Even if the ICC could only occasionally deter potential war criminals, that is already something. And if it fails to deter the criminals of the worst kind, its importance will lie in the bringing of justice afterwards where lawlessness ruled. Its existence may moreover contribute to convincing those who may be fighting against these lords of darkness that they need not resort to retaliatory action against the population at large, thus fulfilling the hope that some device might be found to remove the need for belligerent reprisals. I am aware that Röling would not agree with me here: as late as 1985, in the third and last edition of his Volkenrecht en Vrede (“International Law and Peace”) he rejects as unrealistic the proposition in my thesis of 1971 that reprisals against the civilian population might be replaced with fact-finding and the prospect of adjudication. He has strong supporters on his side: the categorical ban on reprisals against civilians introduced in Protocol I of 1977 has led to carefully phrased “understandings”, most recently on the part of the United Kingdom, which aim to reinstall the reprisal as a respectable legal device, available durante belli, to make the enemy change course and return to an attitude of respect for international humanitarian law, thus reducing the need for retribution post bellum. What to say to this? I remain sceptical of the utility of reprisals, as I am of the possible positive effect of the ICC. Yet, let us keep our fingers crossed: by the time of the next Centennial, this time of the Second Hague Peace Conference of 1907, the ICC may be developing into a significant addition to the list of instruments for the enforcement of humanitarian law and human rights.

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At p. 185.

Chapter 43 From International Humanitarian Law to International Criminal law*

I feel greatly honoured by the request to open this series of Guest Lectures at the Office of the Prosecutor of the ICC. By way of introduction, I start out with some personal reflections to illustrate the colossal distance travelled on the path “from international humanitarian law to international criminal law”. As my next main points I have selected sources of international humanitarian law, notably, issues of customary law and principles of law, and after that, the characterisation of situations as international or internal armed conflict. By way of conclusion, I should like to share with you a few thoughts under the heading “aspects of complementarity”. 1

Reflections about a Quantum Jump

In the 1960s, as a naval officer and a lawyer, I was teaching international law at our Naval Academy, including the law of naval warfare. Since this had not been a topic at Leyden University, I was fortunate to find an experienced mentor. He was a rear-admiral and a lawyer, and his name, M.W. Mouton. At the time, one of his jobs was to test line officers coming up for promotion to senior rank: what did they know about the law of war at sea? Any candidate was bound to fail if he was unaware that he could not simply torpedo any presumed enemy merchant vessel on sight. As well, he never failed to impress upon them that such individual violations of the law of war could give rise to reprisals against the state. Earlier, at the time of the Second World War, Admiral Mouton had been involved in the work of the United Nations War Crimes Commission. Then, in 1949, he served as a delegate to the diplomatic conference that drew up the four Geneva Conventions of that year. The records of that conference show him up as one of the persons most influential in introducing into the Conventions the provisions on grave breaches and other violations. Mouton was absolutely convinced that grave breaches fell under the universality principle. On this point, he had a strong opponent in Bert Röling, a *

Published earlier as 1 Guest Lecture Series of the Office of the Prosecutor, International Criminal Court, 28 Oct. 2003, http://www.icc-cpi.int/library/organs/ otp/Kalshoven.pdf; reprinted in 3 Chinese Journal of International Law (2004) pp. 151161.

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professor of public international law at Groningen University with a profound knowledge of criminal law as well as important post-war experience: Röling had sat as a judge on the International Military Tribunal for the Far East – the Tokyo Tribunal, for short. Hence, he was quite familiar with the idea of holding individuals accountable for their wartime conduct. Yet, when it came to jurisdiction of our domestic courts for war crimes, including grave breaches, he utterly rejected the universality principle and argued that there could be no jurisdiction without solid and direct links tying a case to our national legal order. The debate between these two Dutch gentlemen had a highly theoretical character. The Netherlands had ratified the 1949 Conventions in 1954, but I am afraid that beyond a small circle of military lawyers, this event passed unnoticed. And to the best of my knowledge, no Dutch public prosecutor in those days has ever considered starting an investigation into war crimes committed by foreigners in an armed conflict in a different part of the world. Questions of implementation and enforcement arose again in the 1970s, in the negotiations that led to the two Additional Protocols of 1977 to the 1949 Conventions. (This time, I was among the participants.) Protocol I, applicable in international armed conflicts, got its own grave breaches provisions (and Protocol II, a single line on dissemination). For the rest, to us here in Holland, the situation remained much the same, with implementation meaning proper instruction of the armed forces, and enforcement not much more than that we had to send in replies to the occasional questionnaires of the ICRC. Yet, change was in the air. Events in the ongoing decolonisation wars had led to streams of publications about misbehaviour by one or the other party. Vietnam had brought the pictures of a young girl on fire and of a South-Vietnamese police general summarily and publicly executing a suspect. Then, there was My Lai, as a rare case where punishment followed the wanton killing of civilians. North Vietnam, for its part, at one stage threatened to put U.S. pilots on trial, and the Vietcong in South Vietnam more than once threatened, or resorted to, reprisal executions in reaction to executions of Vietcong prisoners in Saigon’s hands. Understandably, in light of these developments, the parties negotiating Protocol I spent a great deal of time and energy, first, on drafting the detailed rules on protection of civilians against the effects of hostilities, and then on defining what nowadays is called the “elements of crime” that would be required for a person to be held guilty of a grave breach of these provisions. The parties also long and bitterly debated, and ultimately accepted, a ban on reprisals against civilians and the civilian population. The creation of a new instrument for the enforcement of international humanitarian law, in the shape of the International Fact-Finding Commission of Article 90, was but small compensation for the loss of the right of reprisal as an instant corrective device. Created on paper in 1977, the Fact-Finding Commission was actually established in 1991. I was among the people elected on that first occasion. That same year, Yugoslavia fell apart, and the ensuing armed conflicts gave rise to a never-

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ending stream of alleged war crimes. Our Commission was not resorted to by the parties. Instead, the UN Secretary-General, acting on instructions of the Security Council, in October 1992 set up a five-man commission of experts (with two of them also members of the Fact-Finding Commission: Professor Torkel Opsahl and myself ). Our task was to collect and analyse information about the ongoing criminality. And May 1993, the Security Council established the ICTY, with jurisdiction over serious violations of international humanitarian law committed in that territory since 1 January, 1991. Once that done, there followed in rapid succession the events that ultimately led to your presence here (and in which I was happy to figure as an interested onlooker). This short and personal history may have brought out the enormous distance separating the post-war period – with as major feat the 1949 Geneva Conventions with their grave breaches provisions – and the present with the Yugoslavia and Rwanda Tribunals and the ICC: certainly, a quantum jump that justifies the title of this presentation, “from international humanitarian law to international criminal law”. I add two comments. First, I want to remove any suggestion that in moving from international humanitarian law to international criminal law we might have lost international humanitarian law somewhere on the road. Far from it, international humanitarian law is still very much with it, and the remainder of my lecture serves to underscore this point. The second comment is that although the jump has been enormous in the institutional sphere, issues and ideas may have developed less drastically. The discussion between Mouton and Röling about universality versus national interest may have been an intellectual discourse of two gentlemen, but the topic was the same as that concerning the Belgian genocide act, with the international uproar it caused. 2

Sources of International Humanitarian Law

First, a few words about the phrase “international humanitarian law”. It came into common use at the time of the Geneva Conventions of 1949. Indeed, for the lawyers of the ICRC, international humanitarian law was synonymous with the so-called law of Geneva: i.e., the rules for the protection of war victims. This excluded the law of The Hague, or the law of combat. Nor did it appear to incorporate the then brand-new category of “crimes against humanity”, introduced with the Charter of the Nuremberg Tribunal. In 1977, Additional Protocol I largely did away with the distinction between Geneva and Hague law, incorporating the conduct of hostilities and some principles on use of weapons into the body of international humanitarian law. However, when in 1980 a United Nations conference adopted the Conventional Weapons Convention, with its annexed Protocols which put limits on the use of specified weapons such as land mines and incendiary weapons (the napalm of the Vietnamese girl), it was not automatically evident that this new set of rules too

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would be part of the extended international humanitarian law family. By now, however, the term “international humanitarian law” may be understood to cover at least the whole of the law of warfare. In effect, the term has undergone further extension with the arrival of the ICTY, the ICTR and the ICC. The statutes of these bodies define their jurisdiction as “international humanitarian law”. For the ICTY, this includes grave breaches of the Geneva Conventions, war crimes proper, and genocide and crimes against humanity, in that order; for the ICTR, genocide, crimes against humanity, and violations of common Article 3 of 1949 and Protocol II of 1977; and for the ICC, genocide, crimes against humanity, and war crimes (as well as, ill-fitting, the crime of aggression, which I shall not refer to any more). To me, the addition of genocide and crimes against humanity stands not so much for an expansion in substance as in the sphere of enforcement and, more particularly, in the way one looks at violations of substantive IHL rules from a penal and, I would say, moral perspective. Listing genocide and crimes against humanity first in the ICTR Statute and violations of applicable IHL instruments in second place, accurately reflects the killing frenzy that had occurred in Rwanda. For the ICC, relegating war crimes to third position (with genocide in pole position, in racing terms) we may find a comparable ground in the Preamble. This reminds us “that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity,” and it defines the ICC mandate as “the most serious crimes of concern to the international community as a whole”. Criminal acts of that order may well fall in the category of crimes against humanity, if not of genocide. At the same time, we should not forget that they plausibly also are war crimes in the classical sense, i.e., violations of specific substantive international humanitarian law rules. These substantive rules find their major source in the international humanitarian law treaties I have been referring to. Apart from that, there are customary law and the principles of law. An early example of resorting to these latter sources is the ICJ judgment of 1986 in the Nicaragua case (where the United States had been actively supporting the contras engaged in an internal armed conflict with the Sandinista government). The Court felt free to judge “the conduct of the United States … according to the fundamental general principles of humanitarian law”, which were “expressed and in some respects developed” in the 1949 Geneva Conventions. Reinforcing the impression that the Court was dealing here with principles of law as a distinct source of obligation, it also adduced the denunciation clause in these Conventions, which emphasises that denunciation leaves unimpaired the obligations resting upon Parties to an armed conflict “by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience” – the famous Martens clause, introduced in the Preamble to

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the Hague Convention on land warfare of 1899 and oft repeated in subsequent treaties. The impression that the Court was dealing here with principles of law as a distinct source of law is disturbed when one reads in Judge Jenning’s dissenting opinion that he “very serious doubt[ed] whether [the Conventions of 1949] could be regarded as embodying customary law.” Similarly, Judge Ago in his separate opinion declared himself “most reluctant to be persuaded that any broad identity of content exists between the Geneva Conventions and certain ‘fundamental general principles of humanitarian law’, which, according to the Court, were preexistent in customary law, to which the Conventions ‘merely give expression’ … or of which they are at most ‘in some respects a development’…” After all, these gentlemen had been privy to the discussions that underlay the judgment; could they have misunderstood where the Court was heading? Assuming that Ago and Jennings had correctly interpreted the Court’s words, it must be held guilty, not just of confusing the reader, but of disregarding its own rule set out earlier in the judgment: “Where two States agree to incorporate a particular rule in a treaty, their agreement suffices to make that rule a legal one, binding upon them; but in the field of customary international law, the shared view of the Parties as to the content of what they regard as the rule is not enough. The Court must satisfy itself that the existence of the rule in the opinio juris of States is confirmed by practice.” (para 184) I find no trace in the judgment of an effort by the Court to find this practice in relation to the rules embodied in common Article 3. I ought to say a little more about common Article 3. It is part of the Geneva Conventions and hence treaty law in the first place. It reflects the strenuous attempts at the Conference of 1949 to introduce into the Conventions, language that would make, if not the basic rules, at least the essence of the Conventions applicable in internal armed conflict. As a provision of treaty law, the scope of Article 3 cannot extend beyond that of the Conventions. These deal solely with persons who one way or another find themselves in the power of the enemy: war victims, in the narrow sense. The Conventions do not cover the conduct of war, including the protection of civilians against the effects of hostilities. Common Article 3 therefore has nothing to say about this issue either. The thesis one occasionally hears that Article 3 covers the protection of civilians against enemy bullets or bombs in a situation of internal armed conflict is simply ill-founded. Another matter altogether is whether the prohibition to attack or do disproportionate damage to civilians in internal armed conflict might be a rule of customary law. On this, I note that a publication by the ICRC on this and all other questions of customary international humanitarian law is foreseen for the end of this year. Although not authoritative, the information the ICRC is going to provide will certainly be influential. Even if state practice does not support the proposition that in internal armed conflict, a rule of customary law protects civilians from enemy fire, one may con-

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tend that such protection arises from a principle of international humanitarian law. Early support for this contention may be found in UNGA Resolution 2444 (XXIII) of 19 December 1968 on “Respect for Human Rights in Armed Conflicts”. Under the heading “principles for observance by all governmental and other authorities responsible for action in armed conflicts” it reaffirms that it is prohibited “to launch attacks against the civilian population as such”, and “distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible.” Clearly, the resolution deals with principles, not specific rules; and it covers all armed conflicts without exception. Common Article 3 does not itself speak of civilians. It protects “persons taking no active part in hostilities”, and this includes “members of armed forces who have laid down their arms and those placed hors de combat”. The fundamental difference between common Article 3 and Resolution 2444 may be clear: while Article 3 grants humane treatment to anyone who has fallen into the power of an adverse party, the resolution demands respect of civilians (“as such”) who are not in enemy hands. That civilians ought to be respected in any situation of armed conflict may be regarded as an application of what the ICJ referred to as long ago as 1949, in the Corfu Channel case, as “elementary considerations of humanity”. To me, the Court’s “considerations of humanity” do not provide yet another source of law: they are, literally, considerations that underlie the principles and rules of international humanitarian law. Being no more than that, they are not necessarily decisive in all circumstances. As considerations go, they have to compete among themselves. And in matters of warfare, humanity may be one elementary consideration but military necessity is another. The struggle between these two basic notions may be illustrated with a simple example. In the negotiations of the 1970s, one delegation fought for a rule effectively making civilians and civilian populations immune from the effects of hostilities. On top of a total ban on making civilians the object of attack, this would imply that no military objective could be attacked if there was a risk of collateral damage to civilians. This was the “elementary considerations of humanity” implied to perfection. It also was an impossible provision in a treaty that was not designed to prevent armed conflict but only to reduce the hardships of war as far as possible. A few words about Protocol I of 1977, with its detailed set of rules aiming to protect civilians against the effects of hostilities. Many States are party to this Protocol, but a few important ones are not. Among the non-parties are, e.g., the United States, Israel, Afghanistan, Iran and Iraq, as well as India and Pakistan. This situation of fact is apt to lead to a situation where not all parties to an international armed conflict are party to the Protocol. Those who are not, are bound by customary law. Here again the question: what exactly has customary law to say about the protection of civilians against the effects of hostilities? While much

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of the content of Protocol I is said to reflect pre-existing customary law, views differ on two crucial points: the definition of a military objective; and the issue of reprisals. In practical terms, how could different views on the definition of a military objective become an issue before this Court? Suppose the ICTY had adopted a reading closest to the wording of the specific rule in the Protocol, or even improving on it; suppose that the drafters of the ICC Statute simply copied the ICTY solution into the article defining war crimes in international armed conflicts; and suppose, finally, that an accused before this Court comes from a country that is not a party to the Protocol and in fact does not accept the rule in question as customary law: Can this accused be held criminally liable for an act of war that may not be unlawful on the international plane? An interesting question; my answer would be: No. Obviously, the question will remain academic if in such circumstances, the Prosecutor desists from including the specific act in the indictment, as the ICTY prosecutor did with respect to the attack on the TV station in Belgrade – an act that shocked the conscience, perhaps not of mankind but certainly of the media. 3

Definition and Types of Armed Conflict

Whether a situation qualifies as an international or internal armed conflict often poses no problems at all. However, as with any dichotomy in law, borderline cases are bound to arise. The so-called wars of national liberation illustrate the point: whereas to the colonial powers, they were internal affairs, the outside world increasingly regarded them as international armed conflicts. The break-up of Yugoslavia, with the long series of armed conflicts that ensued, provides another example of this difficulty. The UN commission of experts established in 1992 made short shrift of the problem: already in its first interim report it states that “for its purposes”, it chose to regard the whole situation as one of international armed conflict. I may disclose here that my reason to accept this blunt solution was dissatisfaction with the effects the dichotomy had in such a situation of long-lasting, massive, organized fighting. The ICTY could not take such an easy way out of the dilemma. Time and again, it needed to determine whether certain phases of the fighting in BosniaHerzegovina could be qualified as international armed conflict, in particular after the ostensible withdrawal of the JNA from Bosnia – the famous watershed date of 19 May 1992. Or, rather, a failed watershed: applying the so-called “overall control” test, the ICTY Appeals Chamber in the Tadić case concluded that Belgrade had remained so deeply involved that the war in Bosnia did indeed qualify as an international armed conflict. For this, the Appeals Chamber had to disavow the somewhat stricter “effective control” test the ICJ had applied in the Nicaragua case. It could do this because Nicaragua did not bind the ICTY. Similarly, the jurisprudence of the

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ICTY does not bind this Court, and this will be free to devise its own test to determine what level of third-party intervention in an internal armed conflict it considers required to justify its characterization as an international armed conflict. Given the character of many present-day conflict situations, this issue may be expected to come up sooner or later in cases before this Court. IHL freaks like myself shall follow your jurisprudence with interest, if only because this is one of the issues the conferences of the 1970s failed to tackle, leaving us with a dividing line separating the two main categories of armed conflict that we all knew did not reflect reality. Interestingly, whereas the ICC Statute in no uncertain terms reaffirms the distinction between international and internal armed conflicts, a strong tendency nowadays is to get away from the distinctions at all. Resolution 2444 of the General Assembly provides an early example, but in 1968, this was “soft law” at best. In 1993, the commission of experts took the same stance – without any lawmaking capacity. The ICTY, too, several times found that in light of the facts of the case it could do without a determination of the type of armed conflict. Even more important are the cases where our international lawmakers decided to make a set of rules applicable to all armed conflicts, mainly in the sphere of weapons. In 1996, a review conference of the 1980 Conventional Weapons Convention adopted the Amended Protocol on mines and booby-traps and decided that it will be applicable in all types of armed conflict. Then, the Ottawa Convention of 1997 (which prohibits the use, stockpiling, production and transfer of anti-personnel mines) records the undertaking of contracting states “never under any circumstances to use anti-personnel mines”, and “never” evidently includes situations of internal armed conflict. Again, a recent review conference of the Conventional Weapons Convention decided to redraft Article 1 of the Convention itself, to the effect that for states accepting the new text, the Convention and the annexed Protocols will apply in all armed conflicts. 4

Aspects of Complementarity

Leaving the scene of substantive law, I now would like to turn to what I indicated as “aspects of complementarity”. A first, obvious if not trite observation is that not just the ICC but the whole of criminal law comes into play only when things have gone wrong. International humanitarian law is not designed to bring soldiers in jail but to reduce the number of victims of war. This requires compliance – a point that these last times is incessantly being emphasised from all quarters. The situation that interests us here in this meeting is when things went terribly wrong and huge numbers of unnecessary victims were made. A great deal of research is being done into the perceived desires of the victims, and not surprisingly, these vary widely, from the simple opportunity to be heard to compensation and, indeed, punishment of perpetrators. To meet these various needs, different

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formats and procedures may be appropriate. Registration of the complaint may satisfy one victim, restoration of property, another. Even for very grave crimes perpetrated against an important number of persons, symbolic satisfaction may be what the group is seeking. I am thinking of the so-called “comfort women” who in the course of the Second World War had been exposed to multiple rape by Japanese soldiers. I met a number of these women some years ago in connection with procedures being conducted before the Tokyo District Court. Since these were tort cases against the Japanese Government, the remedy sought was financial compensation. However, the only thing the women themselves were interested in was to know that their case was being heard and their plight recognized. In effect, when some of these cases had been lost and the women’s group supporting them in despair had stated a mock trial in Tokyo (before a tribunal with Judge Gabrielle MacDonald in the chair), it was precisely the opportunity this gave them to tell their story in public, even if only in this quasi-judicial setting, that finally provided them with the satisfaction they had been craving for, for more than fifty years. One theatre where endless streams of serious violations of human rights and international humanitarian law have been committed is Latin America. The armed forces in those countries, by tradition quite separate from the rest of the population, had their own disciplinary and judicial system. Apart from that, amnesty at the end of a conflict was equally traditional. These two factors combined led to a system of virtually complete impunity of the military, even of superior rank and in the face of the most gross and systematic violations imaginable. In some cases, dissatisfaction with this situation of impunity gave rise to the establishment of truth commissions, charged with sorting out events and identifying those cases and actors where culpability was so high that non-punishment would be intolerable. The reports of these commissions were received with expressions of gratitude for the work done and then, for all practical purposes, shelved. The argument for governments to pursue this line of action is simple: what the country needs is peace and reconciliation, and any attempt to put the military leadership of the war period on trial risks disturbing if not fatally damaging that process. In support of their position, the authorities may even wish to refer to Article 6(5) of Protocol II of 1977. This states that “[a]t the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict …” The Inter-American Commission and Court of Human Rights have never accepted this line of argument. I will just quote two paragraphs from the Commission’s report of 13 April 2000 in the case of the assassination of Monsignor Romero, an event that had occurred at the outset of the armed conflict in El Salvador:

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Chapter 43 The right that all persons and society have to know the full, complete, and public truth as to the events transpired, their specific circumstances, and who participated in them is part of the right to reparation for human rights violations, with respect to satisfaction and guarantees of non-repetition. The right of a society to have full knowledge of its past is not only a mode of reparation and clarification of what has happened, but is also aimed at preventing future violations. The IACHR considers that despite the important role the Truth Commission played in establishing the facts related to the most serious violations and for promoting national reconciliation, the functions it performed do not take the place of the judicial process as a method for arriving at the truth. The value of truth commissions is that their creation is not based on the premise that there will be no trial, but on their being seen as a step towards restoring the truth and, in due course, justice. [paras. 148, 149]

Three comments: the Commission was speaking in terms of human rights but with international humanitarian law at the back of its mind. It spoke of a right to the truth, both of individuals (the victims) as well as of society as a whole. And it placed the role of the Truth Commission in its proper context, not as an end station but as a step on the road to truth and justice and, as it specifies elsewhere in the decision, to ultimate reconciliation and real peace. In Latin America, the issue is far from settled. It does not seem unlikely that in other theatres, similar differences of opinion about the best way to end a war may appear, especially if the war had all the characteristics of internal armed conflict. I immediately add that I have no idea what role this type of considerations may come to play in a tribal society such as we are told still subsists in parts of Africa. Cases before the Inter-American Commission and Court that arise out of a situation of internal armed conflict do not necessarily focus on impunity alone. Often, their decisions will envisage other measures, including compensation, as means to settle the case and provide satisfaction to the victims. In the case of Bámaca Velásquez, a Guatemalan guerrilla leader who had been tortured and “disappeared”, the Court in its judgment of 25 November 2000 on the merits ordered the prosecution and punishment of those responsible, and it decided that damages would be awarded the relatives of the victim, including his American wife, Jennifer Harbury, a lawyer and journalist. By its judgment of 22 February 2002, it allotted important amounts of money in damages, both material and immaterial, to these relatives. Cases like Bámaca may be evidence of a pattern of criminality warranting prosecution before the ICC. Whether they actually are brought to The Hague will always be a difficult decision to take. Particularly though not exclusively in the aftermath of internal armed conflict, local or regional procedures, including

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a judicious application of amnesty, may stand a better chance of bringing peaceplus-justice to a ravished country. Complementarity, viewed thus, might then be felt to imply that the Court would come into action only if, indeed, the events in a particular country have literally shocked the conscience of mankind, i.e., the international community as a whole; and that the Court’s action should start while the shock wave still persists. But here I better stop: I am entering unfamiliar ground where I can only hope to learn from you.

PART 9 humanitarian law and neutrality

Chapter 44 Neutrality Law*

1

Introductory Remarks

Neutrality law is the branch of the law of war (jus in bello) which governs the relations between belligerent and neutral States (and their nationals) arising from the occurrence of an international armed conflict. It defines the rights and duties of neutral States with respect to the parties to the conflict, and vice versa. Neutrality with respect to a given armed conflict presents two distinct features: on the one hand, non-participation in the conflict, and, on the other, impartiality with respect to the parties to the conflict. As a non-participant, a neutral State is under a duty to avoid getting involved in the conflict. It is obviously precluded from performing acts of war in relation to the conflict in question; this without prejudice to its rights of self-defence and protection of its legitimate interests under general international law. Impartiality, on the other hand, implies an obligation on the neutral State to treat the parties to the conflict on a footing of strict equality. Besides the rules of neutrality law, other relevant rules of international law continue to apply in the relations between belligerent and neutral States. Thus, environmental damage resulting from an act other than an act of war, even if committed by or under the responsibility of a belligerent State, is governed by the general rules of environmental law. Again, the normal rules of State responsibility govern any claim for damages brought by a neutral State against a belligerent State, or vice versa, for an alleged breach of an international obligation not related to the armed conflict. 2 Violations of Neutrality The basic obligation of parties to an armed conflict with respect to a neutral State is not to violate its neutrality. A violation of neutrality can consist of: (1) an act of war which affects the impartiality of the neutral State, or (2) an act of war which affects the neutral State as a non-participant to the armed conflict. *

Report written for a group of experts on the environment and armed conflict, European Commission, 1984.

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Chapter 44 2.1 Violations of Impartiality

An act of the first type, e.g., a military activity making use of the territory of the neutral State, will, if unchecked by that State, provide the acting belligerent State with an advantage over its adversary. Therefore, an obligation arises in such cases for the neutral State to defend its neutrality – i.e., its impartiality – with the means at its disposal. If it fails in this duty and simply tolerates the infringement of its neutral status, it becomes itself guilty of a violation of its neutrality vis-à-vis the other party to the conflict. The act of the first-mentioned party to the conflict may be indicated as a violation of neutrality in the strict or narrow sense. 2.2

Violations of Non-participation

Acts of the second type, such as the bombardment of an object in neutral territory that is in no way connected with the war effort of either belligerent, or the bombardment of a military objective situated in enemy territory causing collateral damage to property located in neutral territory, do not entail the consequence of creating an inequality between the parties to the conflict for which the neutral State can be held responsible by the other belligerent party. In such cases, the impartiality of the neutral State is not at stake and it is therefore under no duty to check the act. Obviously, it is entitled to take such measures as it deems necessary to avert or limit the damage. It may, moreover, bring a claim against the acting belligerent party for a violation of its neutrality in the sense of non-participation: whether such a claim will succeed depends on the extent to which the power of belligerents to perform such acts of war is curbed by a rule of neutrality law providing that such acts may not cause damage to neutral rights. If so, the act in question can be said to amount to a violation of neutrality in a broad sense. The following points should be made with respect to claims of a neutral State under this second heading: a) while a neutral State has the right to bring such a claim, it is under no duty to do so; b) the claim may concern the violation of the legitimate interests of the neutral State as well as those of its nationals; c) the act of war underlying the claim may have been performed within or outside the territory of the neutral State; d) the act of war may or may not have been an unlawful act of war under the law of war, as distinct from the law of neutrality. 3

Environmental Damage to the Territory of a Neutral State

By definition, environmental damage is damage occurring within the territory of the State concerned. “Territory” includes its territorial waters. Although under the recent United Nations Convention on the Law of the Sea a coastal State is

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given rights for the protection and preservation of the marine environment in its exclusive economic zone, it has not been the intention of the negotiating parties to extend these rights to the prohibition of acts of war doing damage to the marine environment. As it stands today, the law of war and neutrality still leaves belligerent parties the right to perform acts of war on the high seas, in the sense of those parts of the sea that are not included in the territorial sea or internal waters of neutral States. 4

Environmental Damage, Impartiality and Non-participation

Environmental damage can be a side effect of an act of war of the first type mentioned above, i.e., an infringement of neutrality stricto sensu. It seems hardly profitable, however, to go into this possibility at any length, as in such a case the main violation of neutrality, with the resultant duty of the neutral State to maintain its neutrality, will absorb all interest. The damage to the environment will probably figure as not much more than a footnote in the diplomatic correspondence following the incident. Of greater interest for present purpose appears the other possibility, viz., the act of war causing environmental damage to a neutral State’s territory and thereby affecting that State’s neutrality lato sensu. An examination of the law relating to such a case should start out with the existing treaty law on the subject. 4.1

Hague Convention V of 1907

The most general provision is found in Article 1 of the 1907 Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land: “The territory of neutral Powers is inviolable.” Taken out of context, this language may appear sufficiently sweeping to cover all conceivable infringements of a neutral State’s territory by warlike activities of belligerent parties. Yet, both the remaining provisions of the Convention and its drafting history leave no doubt that the purpose of the Convention, Article 1 not excluded, was the far narrower one of defining the territorial consequences of a neutral State’s impartiality. The discussions at the Second Hague Peace Conference on this matter started out with a French project, which approached the question of territorial neutrality exclusively from the point of view of a neutral State’s duties. A set of Belgian amendments changed this orientation, bringing the point home that neutral States not only have duties but rights as well. Introducing the amendments, the Belgian representative described their aim as follows: 1 2 3

Annex 24 to the records of the Second Commission. Annex 30. 4th session of the 2nd sub-commission of the Second Commission, 19 July 1907.

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Chapter 44 Etrangers aux hostilités [les neutres] ont le droit primordial d’exiger qu’on ne les y mêle ni directement, ni indirectement. Leur territoire est inviolable et il est bon de le dire en tête des dispositions qui règlent leur situation. Plusieurs de leurs devoirs ont pour objet de leur défendre la tolérance sur leur territoire d’agissements auxquels les belligérants ne peuvent pas se livrer. Il convient dès lors de ne pas se borner à dire que les neutres sont tenus d’empêcher de pareils actes, il importe de déclarer que les obligations des neutres à l’égard de ces faits dérivent d’une interdiction générale qui en bonne logique concerne d’abord les belligérants avant de produire des conséquences pour les neutres.

It may be worth emphasising that the “general interdiction” to which the speaker referred was general in the sense that the proposed rules were applicable to all parties, instead of being addressed exclusively to the neutral States (as the French project had been). This point is brought out clearly in the report of the Second Commission, where it is noted that the Commission saw itself confronted from the outset with the following question: Faut-il concevoir les dispositions nouvelles comme s’adressant exclusivement aux Etats neutres et leur traçant leur ligne de conduite, ou bien convient-il de leur donner, autant que possible, la portée plus étendue de dispositions générales applicables à toutes les parties?

The question, needless to say, was answered in the latter sense. While most of the Belgian amendments were subsequently accepted after more or less extended debate, the proposed rule on the inviolability of a neutral State’s territory did not draw so much as a single word in comment. Both the scant words offered in explanation by the Belgian representative and the ensuing utter silence on the part of his colleagues make it impossible to attach to Article 1 any far-reaching consequences: apparently, the participants in the debate regarded it as a statement of the obvious, serving in this particular context as an introduction to the ensuing specific provisions governing the relations between belligerents and neutrals and designed to protect the latter from being dragged into the conflict against their will. 4.2

Hague Convention XIII of 1907

The Second Peace Conference yielded yet another result relevant to the present enquiry, viz., the 1907 Hague Convention (XIII) Concerning the Rights and Duties of Neutral Powers in War. Article 1 reads: 4

Annex D to the record of the 4th plenary session of the Conference.

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Belligerents are bound to respect the sovereign rights of neutral Powers and to abstain, in neutral territory or neutral waters, from any act which would, if knowingly permitted by any Power, constitute a violation of neutrality.

Article 2 provides: Any act of hostility, including capture and the exercise of the right of search, committed by belligerent warships in the territorial waters of a neutral Power, constitutes a violation of neutrality and is strictly forbidden.

The language used in these provisions, and in particular the phrase “if knowingly permitted by any Power” in Article 1, strongly suggests that respect for the impartiality of a neutral State, rather than its non-participation, is what the Convention is about. Yet, the opening phrase of Article 1 gives rise to the question what was in effect the intention of the drafters in including such a statement of principle in an otherwise fairly sober text. The phrase at issue, as Article 1 in its entirety (and Article 2 as well) stems from a British project. The purpose of the project, as of the Convention in its final shape, was to bring greater clarity and precision to the rights and duties of neutrals and belligerents with respect to the presence and activities of belligerent warships in neutral waters. Here as in the case of Hague Convention V, the drafters were at pains to make the point explicit that the rights and duties of all the parties were at issue. In this connection, the British delegate in introducing the project stated the following: Il est clair cependant qu’on peut s’attendre à ce qu’un Etat oblige ses ressortissants à observer des règles, et à se conformer à des mesures restrictives, qui ne seraient pas reconnues comme également obligatoires par les autres Puissances. De même, si nous voulons faciliter aux neutres l’accomplissement de leur devoir et l’observation d’un règlement qui, en temps de guerre, restreint leur liberté d’action et entrave leur mouvement commercial, il nous incombe de reconnaître que les belligérants sont tenus de respecter le pouvoir souverain des neutres. Pour avoir des devoirs à emplir, les neutres n’ont pas moins des droits à faire respecter, et c’est dans le but d’assurer aux neutres le respect de leurs droits, que nous avons rédigé l’article 2 de notre projet de Convention … [article subsequently numbered Article 1]

While this may still leave some lingering doubts as to the precise implications of the British proposal, the point is further clarified by a statement delivered by the chairman of the sub-commission at the outset of the discussions. Starting 5 6

Annex 44 to the records of the Third Commission. 3rd session of the 2nd sub-commission of the Third Commission.

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out from the thesis that the rights of neutrals hold precedence over the interests of belligerents, he emphasised that the search for agreed uniform rules on neutral rights and duties in maritime matters should not go at the cost of unduly encroaching upon each State’s legislative independence. He then continued (ibid.): Les déductions logiques du principe immuable de la souveraineté nationale semblent simplifier considérablement notre tâche actuelle. Si elles prévalent, notre réponse à la question qui nous est posée, pourrait être renfermée dans quatre préceptes sur lesquels la formation d’une entente ne devrait pas être malaisée. Ces préceptes peuvent être ainsi formulés: 1. Reconnaissance réciproque entre les Puissances contractantes de leur indépendance législative en matière de respect de la neutralité; 2. Application impartiale à toutes les parties belligérantes de la législation que chaque Etat se sera donnée; 3. Renonciation réciproque par les neutres d’introduire dans leurs législations nationales concernant cette matière des variations pendant que l’état de guerre existe entre deux ou plusieurs Puissances contractantes; 4. Devoir absolu des belligérants de respecter les lois des neutres.

This is as clear as could be: the sovereign rights of neutrals are their legislative powers. Other statements made in the course of the debate point in the same direction. It should he added that the report of the Third Commission appears to place the opening phrase of Article 1, and indeed the entire Convention, in a somewhat broader perspective. In discussing the principles which should govern the treatment of belligerent warships in neutral waters, the report notes: Ce qui doit être le point de départ d’une réglementation c’est la souveraineté de l’Etat neutre, qui ne peut être altérée par le seul fait d’une guerre à laquelle il entend demeurer étranger. Cette souveraineté doit être respectée par les belligérants qui ne peuvent l’impliquer dans la guerre ou le troubler par des actes d’hostilité. Toutefois, les neutres ne peuvent pas user de leur liberté comme en temps de paix ; ils ne doivent pas faire abstraction de l’état de guerre. Aucun acte ou aucune tolérance de leur part ne peuvent licitement constituer une immixtion dans les opérations de guerre; ils doivent, de plus, être impartiaux.

Of present interest are also the following paragraphs of the report commenting on Article 1 in particular: 7

Annex C to the record of the 8th plenary session of the Conference.

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Le principe qu’il convient d’affirmer tout d’abord c’est l’obligation pour les belligérants de respecter les droits souverains des Etats neutres. Cette obligation ne résulte pas de la guerre, pas plus que le droit d’un Etat à l’inviolabilité de son territoire ne résulte de sa neutralité. C’est une obligation et c’est un droit qui sont inhérents à l’existence même des Etats, mais qu’il est bon de rappeler expressément dans des circonstances où ils sont plus exposés à être méconnus… Le principe est applicable à la guerre continentale comme à la guerre maritime, et il ne faut pas s’étonner que le Règlement élaboré par la Deuxième Commission au sujet des droits et des devoirs des Etats neutres sur terre commence par cette disposition: “Le territoire des Etats neutres est inviolable.”

The above quotations from the report contain important considerations of principle. Yet, the fact should not be lost sight of that the entire debate on what eventually was to become Hague Convention XIII centred around the rights and duties of belligerent and neutral States relating to the presence of belligerent warships in neutral waters, and that the neutral State’s sovereign rights of legislation, rather than anything else, were foremost in the minds of the delegates. This may be demonstrated once again by a quotation from the statement of the French delegate, who happened also to be the rapporteur of the sub-commission. Starting out from the capital importance of the sovereign rights of the neutral State, with the corresponding duty of belligerents to respect these rights, he continued: L’exercice de ce droit de souveraineté du neutre qui prend sa source dans le droit commun, doit naturellement se concilier avec le respect par le neutre du devoir qui lui incombe de ne participer en rien aux hostilités. Or le droit des gens positif actuel laisse, en fait, aux Etats neutres une grande latitude en ce qui concerne le règlement de la situation des navires de guerre belligérants dans les ports et les eaux neutres. Cette latitude a pour conséquence de faire naître des divergences entre la législation des différents pays sur la matière, divergences qui se manifestent clairement dans les déclarations de neutralité, promulguées par les neutres à l’occasion d’une guerre … C’est à ce point de vue qu’il serait d’un grand intérêt d’arriver à un règlement uniforme qui, n’émanant pas de la volonté d’un seul Etat, serait plus volontiers observé. Cette réglementation générale si désirable aurait pour effet de supprimer des causes de réclamation qui peuvent aisément dégénérer en conflit. Tel est l’idéal, si l’on peut espérer arriver à s’entendre sur tous les points et conclure un accord général. Mais s’il n’était pas possible de s’entendre sur ces quelques règles, on aurait déjà cependant diminué l’incertitude et réduit le domaine des conflits possibles. Il convient à ce propos de remarquer que, sur les points où on n’aurait pu s’entendre, le principe fondamental demeurerait 8

3rd session of the 2nd sub-commission of the Third Commission.

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Chapter 44 intact et l’autorité législative de chaque Etat, ainsi que l’a fort bien remarqué le Président, conserverait tous ses droits.

The conclusion to be drawn from the various statements and texts quoted above appears to be that, although reference to broader principles was occasionally made, this was more in the order of an expression of philosophical considerations underlying the specific point at issue. This point was the legal situation of belligerent warships in neutral waters, and specifically the legislative powers of the neutral State in relation thereto. In particular the opening phrase of Article 1 was designed to safeguard the neutral State’s powers of legislation in this respect. The most that can be deduced from the expressions of wider principle, and in particular the reference in the report to the parallel with Article 1 of Hague Convention V, is that the Third Commission, as the Second Commission before it, has been aware of the generality of a neutral State’s rights as the obvious context in which the specific rules of Convention XIII were embedded. The contextual principle was not, however, elaborated at all in the debate. 4.3

Hague Rules of Aerial Warfare of 1923

Article 39 of the 1923 Hague Rules of Aerial Warfare provides as follows: Belligerent aircraft are bound to respect the rights of neutral Powers and to abstain within the jurisdiction of a neutral State from the commission of any act which it is the duty of that State to prevent.

In the light of the foregoing, there is no need to comment on this provision which merely repeats the earlier formulations. 4.4 Writers Virtually all writers who deal with the territorial aspect of neutrality make a brief reference to the rule of inviolability of neutral territory and then hasten to embark on an enthusiastic discussion of the duties of neutral States arising out of a violation of their territorial sovereignty. The question of whether a belligerent State is entitled to perform acts of war infringing the territorial integrity of a neutral State in its capacity as a non-participant to the conflict, generally appears to escape their attention. An interesting exception to this general tendency is found in the Harvard Law School Research in International Law. The Research published in 1939 the text of a Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War. Article 15 of the Draft Convention repeats the well-known rule: 9

33 AJIL (1939), Special Supplement p. 175 et seq.

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A belligerent shall not commit within neutral jurisdiction any act the toleration of which by a neutral State would constitute a nonfulfillment of its neutral duty.

Article 18, however, strikes a different note: A belligerent shall not engage in hostile operations on, under or above the high seas so near to the territory of a neutral State as to endanger life or property therein.

The comment which the Research attached to the draft text is worth quoting at some length: This article seems to be sound in principle although there is little express authority for it… When a battle between the Kearsarge and the Alabama was anticipated off the coast of France in 1864, the French Foreign Minister informed the American Minister that a fight three miles from the coast “would be offensive to the dignity of France, and they would not permit it.” The United States acquiesced as a matter of courtesy … In 1864 Secretary of State Seward gave favorable consideration to a proposal made by the British Government that war vessels “should not fire toward a neutral shore at a less distance than that which would insure shot not falling into neutral waters, or in a neutral territory.”… But nothing came of the suggestion for the adoption of what was recognised as a new rule. It is perhaps due partly to the lack of a specific rule such as proposed in this article that many maritime States have claimed for purposes of neutrality a belt of marginal waters more than three miles in width … The history of this subject, particularly in connection with the fruitless efforts to reach agreement at the first Conference for the Progressive Codification of International Law at The Hague in 1930, suggests the futility of including in this Draft Convention a specific provision regarding the extent of the belt of marginal waters which are subjected to national authority for purposes of neutrality. It may be noted that neutral duties as well as neutral rights would be greatly affected by a general extension of territorial waters. Combat in the air raises another problem of great importance to neutrals whose land frontiers coincide with those of a belligerent. A belligerent is, in principle, justified in engaging in hostile operations over the territory of its adversary. If, however, the result of such operations is to cause missiles to fall upon neutral territory, the belligerent may expose itself to neutral claims for damages. It is equally true that a belligerent is justified in engaging in hostile operations over the high seas, but the same liability might be imposed upon the belligerent if, in attempting to bomb any enemy warship close to neutral

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Chapter 44 territorial waters, it dropped bombs within the three-mile limit and destroyed life or property therein. The case is perhaps one for an international application of the doctrine of abus de droit … While it does not seem possible to insert here an article containing a more precise obligation than that stated in the text, it is believed that the principle may properly be set forth. In any particular factual situation it would remain a question for determination whether the belligerent had shown an improper disregard of the right of the sovereign of the adjacent neutral territory.

The following points may be highlighted from this interesting exposé. First, the authors themselves regarded the proposed rule as a novelty, for which there was “little express authority”. Then, they confined the scope of the rule to warlike acts which cause direct damage within neutral territory, territorial waters included: shells or bombs which, although aimed elsewhere, inadvertently fall within those territorial limits. They apparently did not contemplate the case of indirect damage to life or property situated within neutral territorial limits, caused by an act of war done completely beyond those limits. Strikingly, the proposed rule of draft Article 18 left no trace in the subsequent literature on the subject. 4.5

State practice: violations of Swiss neutrality in the course of the Second World War

Incidents such as those predicted in the Research occurred in the course of the Second World War owing to the geographical situation of Switzerland “whose land frontiers coincide with those of a belligerent.” A glance at the map suffices to show that Switzerland was surrounded on all sides by belligerent States. This led to occasional damage on Swiss territory caused by incidents such as the crashing of an aircraft, the downing of barrage balloons or the dropping of fuel tanks or bombs. A specific factor of particular interest is that the boundary line between Switzerland and Germany does not entirely follow the Rhine: in places, Swiss territory extends to the right-hand side of the Rhine. This particular configuration of the boundary led to occasional misunderstandings on the part of Allied bombers who, assuming that they were over German territory, dropped their bombs on objects which were actually situated within Swiss territory. Then, damage resulted in some cases from Allied bombardments of objects on German territory but so close to the border that the shock wave attained – and damaged – objects on the other side. One particular incident in this category was the bombardment of the German town Friedrichshafen on the northern side of Lake Constanz, with the blast effect of the bombs allegedly doing damage on the Swiss side of the lake.

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The incidents gave rise to negotiations between Switzerland and the ex-belligerents. According to Maurice Jaccard, a Swiss lawyer and diplomat who at the time was involved in the settlement of the Swiss claims, the States who had caused the damage did not on principle contest their obligation to make reparation for the violations of Swiss neutrality. In some instances, opinions differed over the facts and the evidence presented by the Swiss authorities, with a denial of responsibility as a result. In his article Jaccard does not pursue these questions, as they were of a purely factual nature. He does pay particular attention, though, to the question of so-called Fernschäden: damage done to objects at some distance of the impact of an attack, and specifically, to objects on Swiss soil as a result of attacks on objects situated within belligerent territory. He states that the question of the belligerents’ responsibility for such Fernschäden was answered in the affirmative (“die Frage wurde bejaht.”) He argues that the locus acti is irrelevant to the question of international responsibility for damage resulting from the act, and (quoting Calvo) that “le territoire neutre doit être à l’abri de toutes les enterprises des belligérants de quelque nature qu’elles soient.” He also quotes a more recent author, Von Waldkirch, according to whom are impermissible: unmittelbare Einwirkungen auf das neutrale Gebiet, die sich aus Kampfhandlungen ergeben. Es kommt somit nich bloss darauf an, ob die kämpfenden Truppen ihren Standort im neutralen Gebied haben, sondern ausserdem fällt jede Beeinträchtigung durch Kampfmittel ins Gewicht. Nicht statthaft is demnach namentlich das Beschiessen oder Überschiessen neutralen Gebietes.

He then continues his argument as follows: Im Übrigen ist zu sagen, dass die Fernschäden in einem adäquaten Kausalzusammenhang zu den Bomardierungen auf ausser-schweizerischem Gebiet stehen. Die Verluste hangen notwendig mit der Stärke der verwendeten Bomben zusammen. Wer Bomben in der Nähe des neutralen Gebietes abwirft, muss damit rechnen, dass nicht nur der angegriffene Kriegführende, sondern auch der Neutral Schäden erleidet. Die Pflicht, für Fernschäden Ersatz to leisten, wurde denn auch von keinem der Verursacherstaaten bestritten. Sie leitet sich aus der Tatsache ab, dass eine Verletzung der schweizerischen Gebietshoheit vorliegt.

10 11 12

“Über Neutralitätsverletzungsschäden in der Schweiz während des zweiten Weltkrieges”, in 87 Zeitschrift des Bernischen Juristenvereins (1951) pp. 225-251. Charles Calvo, II Dictionnaire de droit international public et privé (1885) p. 24. Eduard von Waldkirch, Die Neutralität im Landkriege (1936) p. 41.

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It may be added that the Swiss claims based on incidents involving the United States were ultimately settled in an (unpublished) exchange of notes of 21 October 1949. The United States agreed to pay 62 million Swiss francs, in full and final settlement for “all claims asserted by [the Swiss] Government for compensation for losses and damages inflicted on persons and property in Switzerland during the Second World War by units of the United States Armed Forces in violation of neutral rights.” According to information obtained, not all Swiss claims were honoured. In a few instances of actions over Swiss territory, the damage allegedly caused was considered too remote. Also the Friedrichshafen incident remained outside the agreement, on the ground that the bombardment had at most indirectly caused the damage which was claimed to have arisen on Swiss soil. The above leads to the following conclusions. First, and not surprisingly, damage directly caused by actions over neutral territory qualifies in principle for compensation, provided the causal link is sufficiently established. This, indeed, appears to have been the situation envisaged by Von Waldkirch in the text quoted above. Secondly, and of more direct interest to the issue under consideration in this report, in the settlement of Swiss claims for compensation of damage resulting from actions over belligerent territory but the effects of which were felt on the Swiss side of the boundary, a rule was apparently accepted to the effect that such damage qualified for compensation too, provided an adequate causal link could be shown and the acting belligerent party could have foreseen the consequences. 5 The Present State of Neutrality Law The above survey of treaty law, writers and the very limited State practice available, leads to the following twofold conclusion. First, a belligerent is doubtless responsible for damage arising within neutral territory as a direct result of acts of war carried out over or within that territory. This responsibility extends to situations where the actor performs his act (e.g., fires his gun) outside that territory but the effect of the act (the impact of the shell) occurs within that territory. “Neutral territory” includes the territorial waters of the neutral State. Secondly, the enquiry into the state of positive neutrality law has yielded little authority supporting the assertion that damage arising within neutral territory as a consequence of an act of war having its direct impact on a target outside that territory would entail the responsibility of the belligerent. In particular, the drafting history of the neutrality conventions of 1907 provides no positive indication to that effect. In a post-war settlement between Switzerland and some of the belligerents of the Second World War, however, the latter parties apparently did accept responsibility for such occurrences, provided the facts of the case showed the existence of an adequate causal link and the consequences of the act could have been foreseen by the belligerent.

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Future Development of Neutrality Law

An attempt to introduce into the body of positive neutrality law a rule expressly providing for the responsibility of a belligerent for damage, environmental or otherwise, arising within neutral territory or neutral territorial waters as a result of acts of war against targets outside that territory or those waters, could start out from the generally accepted principle that a neutral State’s sovereign rights as a non-participant must not be adversely affected by warlike acts of the belligerents. It should be pointed out that among these sovereign rights is the inviolability of the neutral State’s territorial rights, including life and property of inhabitants. A further point would be that the locus of the damaging act is immaterial, as long as the act can be said to have caused the damage and the actor could and should have foreseen the wider consequences of his act. A proposal for a rule could probably be drafted along these lines. An endeavour in the above sense could build heavily on the Swiss precedent. Yet, the limited utility of this precedent for the question under consideration should be realised. The incidents which gave rise to the acceptance of responsibility for Fernschäden after the Second World War occurred at a very short distance from the Swiss border, and the damage at the other side of the border was caused directly by the shock waves of the exploding bombs. In the event of an attack on a more distant target at sea, resulting, say, in an oil leakage, the link between the act and any ensuing environmental damage to the neutral coastal State would be less direct; in determining the existence of an adequate causal link and whether the actor could and should have foreseen the consequences, factors such as distance from the shore and variability of wind and current will have to be taken into account as much as the nature of the object attacked and the information thereabout reasonably at the disposal of the attacker. The formulation of the elements of causation and foresight will therefore be of crucial importance. Even so, further serious obstacles will await those undertaking the above endeavour. States will doubtless realise the considerable financial risks involved in a formal acceptance in advance of responsibility for events of the type under discussion. This makes it questionable whether they will be prepared to engage in a discussion of the matter at all. Moreover, the States most directly concerned with matters of naval warfare have so far shown little inclination to embark on a revision of neutrality law. Yet, a proposal directed at a specific point of the law of neutrality rather than at this body of law in its entirety, might on that account stand a better chance, at least, of receiving respectful consideration.

Chapter 45 Impartiality and Neutrality in Humanitarian Law and Practice*

1 The International Court of Justice on U.S. Humanitarian Assistance to the Contras On 27 June 1986, the International Court of Justice (ICJ) gave judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua. The case, pitting Nicaragua against the United States of America, is remarkable in many respects, and so is the judgment. I single out two special features: it deals with a situation of armed conflict, and it mentions the Red Cross. The rarity of the Court dealing with an actual situation of armed conflict is a consequence of the reluctance of States to submit such matters to its jurisdiction. The fact that in the present instance the Court could address the issue at all is an accident of procedure rather than the effect of an exceptionally commendable attitude of the parties to the dispute. As it seems unlikely that the example will soon be followed by many others, I can leave it at that. Of greater current interest is the reference the Court makes to the Red Cross. How did it come about, and what are we to make of it? The story starts with the assistance provided by the United States to the contras in and around Nicaragua. During the initial stages of its active involvement, this included all sorts of supplies, including weapons and other military equipment. Then, in June 1985, Congress decided that the administration would * 1 2

3

Farewell address as professor of international humanitarian law, delivered on 3 Feb. 1989 at the University of Leiden; reprinted in 29 IRRC (1989) pp. 516-535. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports, 1986, p. 14. As the judgment went against the U.S., it sparked off a hot debate among American lawyers; see the immediate reactions of some twenty lawyers in 81 AJIL (1987) pp. 1183. The case began with an Application by Nicaragua, filed on 9 April 1984; neither this State nor the U.S. had excluded disputes relating to armed conflict from their relevant instruments of acceptance of the Court’s jurisdiction. With the U.S. not relying on its reservation to the effect that any matter declared by the U.S. to be an internal affair is outside the jurisdiction of the Court, the Court by its judgment of 26 Nov. 1984 decided that it had jurisdiction. When the U.S. thereupon chose to stay away from the proceedings nothing stood in the way of the Court’s dealing with the matter.

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henceforth have to restrict its support to humanitarian assistance. The relevant paragraph in the legislation defines permissible “humanitarian assistance” as: the provision of food, clothing, medicine, and other humanitarian assistance, and it does not include the provision of weapons, weapons systems, ammunition, or other equipment, vehicles or material which can be used to inflict serious bodily harm or death.

While this text may appear clear enough, it still left room for interpretation. Thus, rumour has it that after Congress had published its decision there were those in administration circles who held that the supply of means of communication could be continued as these fell within the category of humanitarian assistance. It may readily be conceded that communications equipment is not a weapon or weapons system, nor can it in and of itself “be used to inflict serious bodily harm or death.” Yet it isn’t food, clothing or medicine either, nor does it particularly resemble any of those items on the list of “humanitarian” goods. It is, indeed, a well known fact that means of communication are of vital importance in all military operations, not least in those of the guerrilla type. The Court did not deal with this particular rumour but rather with the whole business of “humanitarian assistance” to the contras. It noted that: There can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law.

Crucial in this paragraph is the phrase “strictly humanitarian aid to persons or forces in another country.” What are we to understand by it? The Court did not provide a definition of its own. Instead – and this is where the Red Cross comes in – it went on to quote the first and second of the seven Fundamental Principles of the Red Cross, as proclaimed in 1965 by the XXth International Conference of the Red Cross, i.e., the principles of humanity and impartiality. The relevant passages of these Principles read as follows: The Red Cross, born of a desire to bring assistance without discrimination to the wounded on the battlefield, endeavours – in its international and national capacity – to prevent and alleviate human suffering wherever it may be found. Its purpose is to protect life and health and to ensure respect for the human being …

4 5

As quoted in ICJ Reports 1986, p. 47, para 97; p. 115: para. 243. Ibid., p. 114, para. 242.

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It makes no discrimination as to nationality, race, religious beliefs, class or political opinion. It endeavours to relieve the suffering of individuals and to give priority to the most urgent cases of distress.

Inspired by these lofty principles, the Court asserted that: An essential feature of truly humanitarian aid is that it is given “without discrimination” of any kind. In the view of the Court, if the provision of “humanitarian assistance” is to escape condemnation as an intervention in the internal affairs of Nicaragua, not only must it be limited to the purposes hallowed in the practice of the Red Cross, namely “to prevent and alleviate human suffering”, and “to protect life and health and to ensure respect for the human being”; it must also, and above all, be given without discrimination to all in need in Nicaragua, not merely to the contras and their dependents.

With all due respect, I very much doubt the correctness of this part of the Court’s reasoning, and I avail myself of this opportunity to vent my misgivings. My point of departure is the fact that States often limit the material support they give one party to an armed conflict to what they describe as “humanitarian assistance”. This they do when they are in sympathy with that party yet want to avoid the all too direct involvement that might ensue, for instance, from the overt supply of weapons. Especially when it is a matter of providing support to the insurgent party in an internal conflict, for a State to confine material support to “humanitarian assistance” may be a useful device to obviate protests of unlawful intervention in the internal affairs of the belligerent State, without hiding that one’s sympathies lie with the insurgents. In particular at the time of the so-called wars of national liberation that marked the post-World War II decolonization process, the international community never condemned this practice as unlawful intervention in the internal affairs of another State. On the contrary, it welcomed this as an entirely legitimate mode of action and, indeed, a highly desirable expression of support for the cause of self-determination. It is quite obvious that this type of governmental humanitarian assistance, resting as it does on more or less open sympathy for one party if not antipathy for the other, is inherently partial in nature. To measure it, as the Court asks us to do, by the standards governing Red Cross assistance appears somewhat far-fetched, to say the least.

6 7

International Red Cross Handbook, 12th ed. (1983) (hereinafter: Handbook), p. 17: Res. IX of the 20th Int’l Conf. of the Red Cross, Vienna, 1965. ICJ Reports 1986, p. 115, para. 243.

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Chapter 45 2 The Red Cross Principles of Impartiality and Neutrality

The Court’s argument about the “essential feature of truly humanitarian aid” leads me to another, more fundamental question. This is connected with the interpretation the Court places on the notion of impartiality as a principle governing Red Cross aid. To cast my question in terms directly related to the case before the Court: Suppose it had not been the Government of the United States but the American Red Cross that had supplied humanitarian assistance to the contras, would this activity have amounted to a violation of Red Cross principles if that Society had not at the same time attempted to provide similar relief for “all in need in Nicaragua”, i.e., including the Sandinistas? Two Red Cross principles are at issue here. Besides the principle of impartiality, relied on by the Court, equal relevance attaches to the principle of neutrality. The Proclamation of 1965 gives the following definition: In order to continue to enjoy the confidence of all, the Red Cross may not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological nature.

Before we go any further, the point should be stressed that while the principles may have been officially proclaimed in 1965 by the XXth International Conference of the Red Cross, they had, in one form or another, governed Red Cross activities from the very beginning. And as we shall see, they are reflected in the treaty law relating to the treatment of the wounded and sick and other victims of armed conflict. Among those who have tried their hand at explaining the principles underlying the International Red Cross and Red Crescent Movement in all its aspects, one man has more than anyone else contributed to their correct understanding, and that man is Jean Pictet. In a recent study he distinguishes within the principle of impartiality as defined in 1965, three separate notions: non-discrimina8

9

10

An earlier, somewhat tentative and less authoritative list of principles was adopted by the then Board of Governors (now the General Assembly) of the League of Red Cross Societies, in its 19th session, 1946, and reaffirmed at its 20th session, 1948; Handbook, p. 549. His long series of writings on the subject starts out with the magisterial Les principes de la Croix-Rouge, published in 1955; from this study stem the endeavours that ten years later resulted in the adoption and proclamation of the Fundamental Principles. “The Fundamental Principles of the Red Cross and Peace”, in 24 IRRC (1984), p. 74. It may be of interest to refer here to an earlier study by the man who in many respects was Jean Pictet’s predecessor: Max Huber, “Croix-Rouge et neutralité”, in Revue internationale de la Croix-Rouge No. 209, May 1936, p. 353, republished in Max Huber, La pensée et l’action de la Croix-Rouge (1954) pp. 77-86.

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tion, proportionality and impartiality proper. Non-discrimination is the absence of objective discrimination, or in other words, the non-application of adverse distinctions to people on the sole ground that they belong to a specified category: a race, a political party, a religious creed, or whatever. Proportionality requires that every person in need of help shall be aided according to his need. And impartiality implies that no subjective distinctions shall be applied among those who suffer: they are all equally entitled to help, whether they are good or bad, innocent victims or persons guilty of hideous war crimes. In a sense, neutrality is a necessary negative complement to the essentially positive notion of impartiality. As Pictet explains, the Red Cross principle of neutrality has two aspects: one, it requires non-participation, whether direct or indirect, in active hostilities; secondly, it implies ideological neutrality, or in other words, the non-acceptance of any ideology other than its own (which in effect has found expression in the principle of humanity). The neutrality of the Red Cross implies, therefore, that none of its component parts may take sides in any political controversy, whether national or international and no matter what the issues. As we shall see, this may be less easy in practice than it sounds. Before coming to that, we should try to gain an insight into the legal aspect of the matter. What is, from that point of view, the impact of these principles on Red Cross activities and, in particular, on the question of whether a National Society, such as the American Red Cross, would violate any principle if it were to supply humanitarian assistance to one party to an armed conflict only? By way of introduction, let us cast a glance backwards at the early history of the Red Cross movement, which was founded just about a century and a quarter ago. The first National Red Cross Societies (though not yet so named) were established for the purpose of assisting the army medical services in the performance of a task with which the latter had more than once (and not merely in 1859 at Solferino) proved unable to cope. In the words of resolutions adopted at the founding conference of the movement, the International Conference held in Geneva in 1863: Each country shall have a Committee whose duty it shall be, in time of war and if the need arises, to assist the Army Medical Services by every means in its power … In time of war, the Committees of belligerent nations shall supply relief to their respective armies as far as their means permit; in particular, they shall organize voluntary personnel and place them on an active footing and, in agreement with the military authorities, shall have premises made available for the care of the wounded.

11

Handbook, p. 547.

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We may readily admit, with Donald Tansley, that the original purpose of the National Societies “has somehow been forgotten over the years” and that most of them have “turned to other activities.” One obvious cause is the development of ever more sophisticated military medical services, taking away the need for supplementary Red Cross field teams. The point is well illustrated by recent Dutch experience. Some years ago, plans were laid in the Netherlands for a reorganization of civil defence and disaster preparedness and, in that context, for a distinct role for the Netherlands Red Cross. When, in an attempt to incorporate the new situation in the legislation in force, the Royal Decree that recognizes the Society and regulates its relations with the authorities was brought up for revision, the Ministry for Defence initially let it be known that they did not wish to reserve any claim on the services of Red Cross teams, as they did not foresee any active role for such teams alongside military medical personnel in potential battle areas. (They later changed their attitude, if only to keep a finger in the interdepartmental pie). Until 1986, the conditions for the international recognition of a National Society included the requirement of being duly recognized by its government “as a Voluntary Aid Society, auxiliary to the public authorities, in particular in the sense of Article 26 of the First Geneva Convention of 1949”; in the sense, that is, of rendering assistance, whenever necessary, to the national military medical service. In October 1986, the XXVth International Red Cross Conference adopted new Statutes of the International Red Cross and Red Crescent Movement, and these no longer specifically refer to Article 26. Instead, they require in somewhat vaguer terms that a National Society “be duly recognized by the legal government of its country on the basis of the Geneva Conventions and of the national legislation as a voluntary aid society, auxiliary to the public authorities in the humanitarian field.” This raises the matter of the treaty law relating to the wartime activities of National Societies. The treaties in force include the four Geneva Conventions of 1949 and the two Additional Protocols of 1977. With the exception of one article, the Conventions of 1949 are applicable in international armed conflicts, and so is Additional Protocol I of 1977. The one remaining article of the Conventions,

12 13 14 15 16

Donald D. Tansley, Final Report: An Agenda for Red Cross, July 1975, p. 23. Royal Red Cross Decree, 22 Dec. 1988, published in Staatsblad 680, 17 Jan. 1989. Handbook, p. 498. Art. 4(3) of the Statutes of the International Red Cross and Red Crescent Movement, adopted by the XXVth Int’l Conf. of the Red Cross, Geneva, Oct. 1986. Convention I, 75 UNTS (1950) p. 41, Handbook, p. 23; Convention II, 75 UNTS (1950) p. 85, Handbook, p. 47; Convention III, 75 UNTS (1950) p. 135 Handbook, p. 67; Convention IV, 75 UNTS (1950) p. 287, Handbook, p. 136; Additional Protocol I, Handbook, p. 216; Additional Protocol II, Handbook, p. 286.

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common Article 3, together with Additional Protocol II, may with some simplification be said to apply in internal armed conflicts. Article 26 of the First Convention, “for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field”, reflects the classic role of National Societies; it provides that the staff of a National Society that is employed on the same duties as the military medical personnel of their country shall be placed on the same footing as that personnel. Article 24 defines those duties as “the search for, or the collection, transport or treatment of the wounded or sick.” The point should be emphasized that these duties are by definition performed in areas under the control of their country and, hence, on one side only. While this already suggests that the Court’s stern requirement of assistance to all sides can hardly be a correct interpretation of Red Cross principles, this suggestion is strengthened to the point of becoming a certainty when we consider the case of the Red Cross Society of a neutral State that lends medical assistance to a State party to the conflict (and, hence, outside its own territory). The International Conference of 1863, anticipating this possibility, stated that “They [i.e., in its terminology, the “Committees of belligerent nations”] may call for assistance upon the Committees of neutral countries.” Nor has this remained a mere theoretical possibility: by way of example, and as a matter of historical interest, the fact may be recorded here that in the war between Russia and Turkey, 1877-1878, the Netherlands Red Cross, at the request of the Turkish Red Crescent Society and with due permission from both sides to the conflict, operated a field hospital on the Turkish side. Article 27 of the First Convention requires in such a case both the previous consent of the Society’s own government and the authorization of the State party to the conflict concerned. The medical personnel of the Society are then placed under the control of this belligerent party, and both this party and the neutral government must notify the adverse party of the arrangement. For completeness’ sake I should note that none of this was significantly modified in 1977: as far as relevant here, the provisions of Protocol I reaffirm the legal situation of a neutral Society and its personnel by the simple device of referring back to Article 27 of the 1949 Convention. 17 18 19 20

For a more detailed description of the scope of application of common Art. 3 and Protocol II, see Kalshoven, Constraints on the Waging of War (1987). Supra, note 11. Jonkheer G. M. Verspyck, Het Nederlandsche Roode Kruis (1867-1967), p. 86. Art. 8(c)(iii), Art. 9(2), Art. 12(2)(c). It should be noted that Art. 9 of Protocol I develops the legal situation in several respects which, however, are not relevant in the present context; thus, it adds a reference to the permanent medical units and transports and their personnel of “a neutral or other State which is not a Party to that conflict” (para. 2a) and of “an impartial international humanitarian organization” (para. 2c); see ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987) pp. 138-143: paras. 407-440.

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Evidently, then, even such overtly one-sided assistance is not deemed to bring a National Society of a neutral country in conflict with the Fundamental Principles of the International Red Cross and Red Crescent Movement. Needless to say, its decision to opt for one or another party to the conflict may not be based, say, on plain political grounds. More generally, its activity must always be assessed against the twin principles of impartiality and neutrality. While on the face of it, respect for these principles may not appear to pose any particular difficulties, it should be remembered that an armed conflict is a manifestation of a political process, and any activity connected with the conflict, no matter how disinterested, risks being given a political twist or otherwise used for political purposes. After all, the very fact that two interested governments have to stamp the action with their seal of approval provides an indication of the political context in which our National Society is bound to carry out its task. What, indeed, if its action happens to coincide with an operation by its own government to supply “humanitarian assistance” to the same belligerent party? The only thing one can probably say is that, like justice, neutrality must not only be respected but must be seen to be respected. For the rest, it may suffice to base the forbidden non-neutral service on entirely valid grounds such as, in the Turkish case, the objective need for supplementary medical assistance to the wounded and sick of one party, as evidenced by a credible request from the National Society of the country concerned. Impartiality (including, with Jean Pictet, proportionality and non-discrimination) requires, in the words of Article 12 of the First Convention, that assistance shall always be given “without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria”; moreover, “only urgent medical reasons will authorize priority in the order of treatment to be administered.” Impartiality and non-discrimination apply as soon as and wherever the Red Cross team is able to perform its functions. The point to emphasize here is that neither principle decides where the team is able to operate: this depends entirely and exclusively on the consent of the party in control of the territory. The point can hardly be overemphasized that the territorial scope of the team’s activities will of necessity be restricted to the area to which they have been given access; it does not, in other words, extend to territory under the control of the adverse party, whatever the need for assistance to the wounded and sick on that side. In view of all this, the conclusion appears inescapable that neither the Red Cross principle of impartiality, including non-discrimination, nor that of neutrality require a National Society to lend, or even offer, assistance to all parties to an international armed conflict. Does this lead to the equally inescapable conclusion that the Hague Court in its judgment in the Nicaragua case has misinterpreted these principles? Our argument has so far been entirely based on practice and law relating to international armed conflicts, and the relations between Sandinistas and contras could

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not be characterized as such an armed conflict, but at most, according to the Court, as an internal one. As there are perhaps as many differences as similarities between the treaty regimes for either situation, we should ask ourselves whether a situation of internal armed conflict requires a different interpretation of the Red Cross principles as well. A first point to note is that the Red Cross has, ever since the adoption of Resolution XIV by the Xth International Conference of 1921, “affirm[ed] its right and duty of affording relief in case of civil war and social and revolutionary disturbances.” While this phrase does not specify who should provide the relief, the Resolution goes on to state that in principle, “In every country in which civil war breaks out, it is the National Red Cross Society of the country which, in the first place, is responsible for dealing, in the most complete manner, with the relief needs of the victims; for this purpose, it is indispensable that the Society shall be left free to aid all victims with complete impartiality.” Without making it a condition for the Society to be simultaneously active on both sides, the quoted text expresses clearly the desire that this shall be the case. Other Red Cross Societies enter the picture when Resolution XIV comes to deal with the situation where the National Society of a country involved in civil war “cannot alone, on its own admission, deal with all the relief requirements.” In that case, “it shall consider appealing to the Red Cross Societies of other countries.” The Resolution emphasizes that any such request must emanate from the National Society rather than from one or another of the parties to the conflict. While the Red Cross had thus broached the problem of relief in civil war, the Diplomatic Conference that in 1929 took up the revision of the Wounded and Sick Convention of 1906 left the whole matter of civil war outside its deliberations. As mentioned above, it was only in the 1949 revision that a single article on internal armed conflict was incorporated in the four Conventions of that 21 22 23

24

25

ICJ Reports (1986) p. 104, para. 219. Handbook, p. 641; full text of the Resolution in the 10th ed. of the Handbook (1953) pp. 414-415. In an enumeration of exceptional cases, the Resolution mentions the possibility that the Society has been dissolved or is unable or unwilling “to request foreign aid or accept an offer of relief received through the intermediary of the International Committee of the Red Cross.” When, in such a case, “the unrelieved suffering caused by civil war imperatively demands alleviation”, the ICRC “shall have the right and the duty to insist to the authorities of the country in question, or to delegate a National Society to so insist, that the necessary relief be accepted and opportunity afforded for its unhindered distribution.” Among the further principles laid down in the Resolution is the requirement that the request must be addressed to the ICRC (which thereupon, “having ensured the consent of the Government of the country engaged in civil war”, shall organize the relief ). On the role of the ICRC in these matters, see hereafter in section III. Paul Des Gouttes, La Convention de Genève pour l’amélioration du sort des blessés et des malades dans les armées en campagne du 27 juillet 1929, Commentaire (1930), pp. 186-87.

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year, and this article, common Article 3, is completely silent on the matter of relief and does not refer to National Societies at all. In contrast, Article 18(1) of Protocol II of 1977 does refer to National Societies. More specifically, it provides that relief societies located in the territory of the State involved in an internal armed conflict, such as Red Cross or Red Crescent Societies, “may offer their services for the performance of their traditional functions in relation to the victims of the armed conflict.” So, unlike in 1921, the reference is to local societies only. Supposing for a moment that Nicaragua were a party to the Protocol, this much is certain: the American Red Cross, not being located in the territory of that State, could not derive from Article 18 a right to bring relief to the wounded and sick or other victims of the conflict, whether on the side of the contras, the Sandinistas, or both. Once again, however, this is not to say that it would have been precluded from offering its services but merely that National Societies other than the one located in the country at war have no recognized right to make such an offer, and any offer they make may be rejected out of hand. In view of all this, I am firmly convinced that if in such a situation of internal armed conflict a National Society not located in the country at war provides assistance to those in need on one side only, this activity need not bring it into conflict with the Fundamental Principles of the Red Cross, any more than bringing assistance to one side in an international armed conflict would do. An obvious condition is that in doing so it duly respects the principles of neutrality and impartiality. Thus, always in our imaginary example, the American Red Cross should have had no political motive in bringing humanitarian aid to the contras: rather, its action should have been prompted by considerations such as the human suffering caused by the conflict and the absence on the side of the contras of adequate medical and other needed facilities. 3 The ICRC and National Societies Following this criticism of the ICJ’s judgment in the Nicaragua case, I feel obliged to make a guess at what may have made it embark on its incorrect interpretation of the Red Cross principles of neutrality and impartiality. This brings me to a member of the Red Cross family that I have so far studiously ignored, viz., the International Committee of the Red Cross. Contrary to what its name suggests, this is not formally an international organization at all, but a Geneva-based association of Swiss citizens. Yet, materially, the word “international” in its name is entirely justified by the functions it performs and has been performing for many years. With the National Societies, it has shared from the outset the function of assisting the wounded and sick in armies in the field. The first time it ventured on that path was in April 1864, during the war between Prussia and Denmark, quite a while before it assumed its present name and even before the first Geneva

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Convention for the Amelioration of the Condition of the Wounded in Armies in the Field had been signed (an event that took place on 22 August of that year). Over the years, the task of bringing outside protection and assistance to the victims of armed conflict, and especially internal armed conflict, came to fall more and more exclusively to the Committee. This is apparent in resolutions adopted by International Conferences of the Red Cross as well as in the actual practice of the various members of the Movement. While as we have seen, the right of National Societies to take part in this type of activity has survived to this day, it is the ICRC that literally always and everywhere attempts to come to the succour of the victims in question; so much so that at times it looked as if it had established a monopoly in the field. The agreement it concluded in 1969 with the League of Red Cross Societies “for the purpose of specifying certain of their respective functions” confirmed its dominant position in this area of Red Cross activity. The unremitting efforts of the Committee in favour of the victims of all armed conflicts have resulted in general recognition of its “right of humanitarian initiative”; i.e., the right to offer its services whenever and wherever necessary. It is reflected in the Statutes of the International Red Cross and Red Crescent Movement, where it is stated that: The International Committee may take any humanitarian initiative which comes within its role as a specifically neutral and independent institution and intermediary, and may consider any question requiring examination by such an institution.

The treaties in force reaffirm and reinforce the Committee’s predominant position. The Conventions of 1949 not only assign it a variety of specific tasks, but also expressly recognize its right of humanitarian initiative, a right it nominally shares, according to the relevant articles, with “any other impartial humanitar26 27

28 29

Pierre Boissier, History of the International Committee of the Red Cross: from Solferino to Tsushima (1985, translation from original French text published in 1963), p. 93. The tendency is already apparent in Res. XIV of the Xth Int’l Conf., mentioned in section II: while the National Society of the country engaged in civil war may appeal to the Societies of other countries, it must do this through the intermediary of the ICRC, which then shall organize the relief. If the government refuses its consent, it is the ICRC that “shall make a public statement of the facts,” Indeed: “Should all forms of Government and National Red Cross be dissolved in a country engaged in civil war, the International Committee of the Red Cross shall have full power to endeavour to organise relief in such country, in so far as circumstances permit.” See also Res. XIV of the XVIth Int’l Conf., London, 1938, Handbook, p. 642; Res. XXXI of the XXth Int’l Conf., Vienna, 1965, Handbook, p. 643. Handbook, p. 475. Art. 5(3) of the Statutes, adopted in 1986 by the XXVth Int’l Conf. of the Red Cross, Geneva.

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ian organization”. While these articles apply in international armed conflicts, common Article 3 similarly provides that in the event of internal armed conflict, “an impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.” Much to the regret of the Committee, Protocol II of 1977 does not reiterate this recognition of its right of initiative. Yet it is worth casting a glance at Article 18(2) which provides that: If the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival … relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned.

This passive construction was purposely chosen to avoid any indication as to who should undertake the relief actions, let alone any specific reference to the Red Cross. Yet the paragraph evidently refers to relief coming from abroad, and it enumerates the conditions such actions have to fulfil. Three of these conditions reflect the fundamental Red Cross principles of humanity and impartiality, i.e., non-discrimination. When we combine this with the reference in common Article 3 to an “impartial humanitarian body, such as the International Committee of the Red Cross”, the conclusion is readily drawn that the Committee is, to say the least, undoubtedly qualified to undertake relief actions for a civilian population suffering undue hardship as a consequence of an internal armed conflict. And indeed, it has undertaken such actions on many occasions. However, it is not always successful in its endeavours; there is, after all, the remaining condition in Article 18(2) of “consent of the High contracting Party concerned.” This wording leaves little doubt which party the authors of the pro-

30 31

32

Art. 9 of Conventions I-III, Art. 10 of Convention IV. Draft Art. 39, submitted by the ICRC in 1974 to the Diplomatic Conference, had repeated the text of common Art. 3 that “the ICRC may offer its services to the parties to the conflict”; in 1977, in the course of the final session, the Conference in plenary session deleted this proposed text by consensus; 7 Official Records 151-152: CDDH/SR.53 paras. 64-70; see also Kalshoven, “Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: the Diplomatic Conference, 1974-1977, Part I: Combatants and Civilians”, in 8 NYIL (1977) pp. 107135, at p. 115. In its Commentary on the Protocols (op. cit. note 20) the Committee simply states that “What is meant in particular is relief actions which may be undertaken by the ICRC or any other impartial humanitarian organization”; p. 1479, para. 4879 (emphasis added).

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vision had in mind: obviously, none other than the incumbent government, and definitely not the insurgent party. Here we come across the crucial problem of access to the territory of a country at war; a problem with which the Committee has to struggle in its day-today practice and which frequently entangles it in delicate negotiations with the authorities in power. I note in passing that while this obstacle may be particularly hard to overcome in situations of internal armed conflict (witness, for example, recent experience in Ethiopia), the governments of countries involved in an international armed conflict (say, the war between Iran and Iraq) are apt to erect equally formidable barriers. To return to the case of internal armed conflict, no incumbent government is eager to acknowledge that it has even temporarily lost control over part of its territory. As a consequence, it goes on claiming the right to determine who will be admitted, even to parts of the territory firmly under the control of the insurgents (who may themselves apply their own criteria for admission). Whoever wants to bring relief to the victims in these areas is faced with a dilemma: whether to respect the claim of the government, perhaps even when this is plainly absurd, or to go ahead regardless. It is not my purpose to examine this question in any detail. It may suffice to note that the Committee usually appears prepared to negotiate at length with the governmental authorities about access to insurgent-held areas and apparently has more than once made its entry into such areas dependent on their prior consent. This may often be a commendable policy. Yet it can also lead to very precarious situations, for instance if a government, in plain disregard of its solemn obligations under international law as expressed in Article 14 of Protocol II, is determined to apply starvation as a method of warfare and accordingly persists in withholding its consent. There are only two ways out of the resultant impasse. One is for the Committee to accept failure and confine its assistance to the victims on the governmental side. This may go against its fervent aspiration to implement to the 33

34

For a different interpretation, see Prof. Denise Bindschedler-Robert, “Actions of Assistance in Non-international Conflicts – Art. 18 of Protocol II”, in European Seminar on Humanitarian Law, Jagellonean University, Krakow, report, 1979, pp. 7183. Her attempt to solve the problem by interpreting the term “High Contracting Party” as the State, thus leaving the question of its representation by the “legal” government or the other party wide open, was already challenged on that occasion, among others by the present author; report, p. 84. My participation in a good part of the negotiations that led up to the text of Art. 18 has given me the strong conviction that to most participants, “High Contracting Party” simply meant the incumbent government. Art. 14, 1st sentence, states the principle that “Starvation of civilians as a method of combat is prohibited.” As for Art. 18, see the commentary by Michael Bothe, in Bothe, Partsch and Solf, New Rules for the Victims of Armed Conflicts, 1982, pp. 696697, and the ICRC Commentary, p. 1479: paras. 4884, 4885.

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fullest the task of “preventing and alleviating human suffering wherever it may be found”; an aspiration, incidentally, that the Hague Court may well (though erroneously) have taken for the only possible interpretation of the principle of humanity. It must be stressed that the quoted words, set out in the principle of humanity as defined in 1965, represent no more than a sort of ideal or ultimate goal, and they are not meant to constitute a yardstick by which the legitimacy of every single humanitarian act should be measured. It may be repeated that an act of assistance just to one side to the conflict need not violate the principle of humanity, any more than it does those of impartiality or neutrality. If the ICRC finds this solution unacceptable, the remaining way out is for it to disregard the government’s refusal. This may go against its policy of co-operation with all governments, good or bad. However, this is only a policy, not a sacred principle; and even if it were, it must be remembered that Jede Konsequenz führt zum Teufel: any attempt to maintain absolute consistency leads to the devil. Put differently, for an institution like the ICRC to operate in a political environment as chaotic and corrupt as the international community requires a readiness to accept compromise if, and to the extent that, principle cannot be upheld. As opposed to the straight road of principle, the path of compromise is tortuous and full of pitfalls. To mention only one: the powers that be are as likely as their opponents in an internal armed conflict to exploit the situation to their political advantage, and they may be very ingenious in turning a purely humanitarian action into an ostensible political act. In such circumstances, the decision whether to continue or discontinue the action may become agonizingly difficult to take. Be this as it may, the difficulties attending the Committee’s policy of respecting governmental authority to the utmost may have contributed more than anything else to its at times apparent disapproval of National Societies becoming too active in bringing assistance to the victims of internal armed conflict. An obvious exception is the National Society located in the country at war: as already recognized in 1921, this Society may be particularly well suited to take part in such activity. Thus, the Uganda Red Cross Society played a crucial role throughout a seemingly endless period of internal conflict, and the same is true of the Lebanese Red Cross: without their unfailing and at times extremely courageous endeavours, the ICRC could not have functioned as it did.

35 36

See Jean-Christophe Rufin, Le piège – Quand l’aide humanitaire remplace la guerre (1986). Information about events in Uganda was provided by Tom W. Buruku, Head of the Africa Department of the League of Red Cross and Red Crescent Societies and former Secretary General of the Uganda Red Cross Society; as for Lebanon, the reader may be referred to the periodic reports in the media. Obviously, this may work both ways; thus, in the Lebanon, the ICRC helped the Lebanese Red Cross survive.

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An instance of assistance by a National Society located elsewhere than in the country at war is the food airlift operated by the French Red Cross from Libreville into Biafra, i.e., to the separatist party to the civil war in Nigeria. The French Red Cross engaged in this activity without the consent of the government in Lagos, at a time when the ICRC was for all practical purposes precluded from bringing aid to that part of the country. In doing so, the French Red Cross did not help the Committee in its efforts to obtain from the authorities concerned the necessary consent to resume the despatch of relief into Biafran territory. The French action was, moreover, regarded with some suspicion because the airfield at Libreville was also used for the shipment of weapons. Yet the point deserves to be emphasized that while the independent action by the French Red Cross may have been regarded with a jaundiced eye, it was never denounced as a violation of Red Cross principles. After all, the French action came at a time when public opinion in Europe and elsewhere was raising its voice in protest against the policy of starvation as a method of warfare, as applied by the Nigerian Government against part of its own population. Quite recently, in 1986, the ICRC submitted to the XXVth International Conference of the Red Cross a Guide for National Societies that explicitly acknowledges their role in situations of conflict. As regards internal armed conflict, the document attributes a particular function to the Society of the country concerned; it identifies the many difficulties it may encounter and emphasizes the need for it “to retain its freedom of movement throughout the country, subject only to the military situation” – words strongly reminiscent of the language used in 1921 by the Xth International conference. Yet the text does not stop at that: it also goes into the position of National Societies of countries not parties to an internal armed conflict. On this score, it explains that in spite of the silence in the relevant treaty provisions, there is nothing to prevent humanitarian activities and Protocol II provides for relief actions of an exclusively humanitarian and impartial nature conducted without any adverse distinction to be undertaken for the civilian population, subject to the consent of the authorities concerned. A National Society can therefore offer aid to the victims of an internal conflict.

Having said that, the Committee hastens to add that “In practice … [the National Societies] generally work in close co-operation with the ICRC, whose assist37 38 39 40

As regards the role of the French Red Cross in relation to Biafra see Dan Jacobs, The Brutality of Nations (1987). Guide for National Red Cross and Red Crescent Societies to Activities in the event of Conflict, Oct. 1986. Ibid., p. 34. Supra, note 22.

990 Chapter 45 ance is an additional guarantee of the neutrality and humanitarian nature of the relief activities.” Just so; but the fact remains that in the quoted paragraph the Committee unreservedly recognises the right of National Societies to “offer aid to the victims of an internal conflict”; it does not specify that the offer should always extend to both sides, and it leaves open the question of who are the “authorities concerned” whose consent is required. I do not believe that as a result of the new Guide National Societies of countries not involved in an ongoing internal armed conflict will soon be developing independent humanitarian activities on a grand scale in favour of the victims. Nor do I particularly advocate such a marked shift in policy: a multiplicity of non-coordinated relief efforts tends to affect efficacy and is therefore undesirable in any disaster situation, let alone in the intractable mess an internal armed conflict usually creates. Another point: the statement in the Guide that “there is nothing to prevent” relief activities being undertaken by National Societies of countries not involved in an internal armed conflict, while legally correct, may strike the reader as somewhat defeatist from a practical point of view. One wonders whether from that point of view the potential contributions of such Societies might not deserve a more positive approach. Pursuing this line of thought, I venture to suggest that the Committee might welcome or even actively seek the regular co-operation of interested National Societies in its field work in conflict situations. It might do this, more specifically, in the many cases of internal armed conflict (including the mixed, part-internal part-international variety) as well as in the nowadays relatively rare event of purely inter-State armed conflict. I am thinking here not so much of the Committee’s general task of “protection and assistance”, with its complex features of diplomacy, negotiation and representation at all levels. What I have in mind is, rather, participation in specific relief activities: setting up and running emergency hospitals for the wounded and sick of all categories, organizing centres for the distribution of food and other vital supplies to the thousands of displaced persons who have fled the scene of the fighting, and so on. The peacetime disaster relief activities of many National Societies have provided them with quite a bit of expertise in these matters, and this may make them extremely useful here. Needless to say, the modalities of such co-operation would have to be carefully worked out in every single instance, as they are in the relatively few instances where it can already be seen at work (as in Angola, where the Swedish Red Cross has for some time been operating an orthopaedic workshop in Luanda and a similar activity by the Netherlands Red Cross has started more recently). While I am making this suggestion entirely on my own account and without prior consultation with any National Society, I may add that, in my view, such a 41 42

Op. cit. note 38, p. 55. See Kalshoven, Assisting the Victims of Armed Conflict and Other Disasters (1989).

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policy might have three significant positive effects: it could relieve the ICRC of some of its burden, offer National Societies an opportunity to actively (and not merely financially) contribute to the alleviation of human suffering in an area that is very much on the public mind, and, last but not least, enhance and improve relations between the ICRC and the National Societies. The situation would be even further improved if the Committee were prepared to publicly acknowledge these contributions by National Societies, for instance, by regularly reporting them in its monthly Bulletin, alongside its own activities. If such systematic co-operation between the ICRC and National Societies could be achieved for the great many more or less “normal” wartime relief activities, the latter could be expected to reserve their inclination to “go it alone” for the really exceptional situations of the Biafra type, where one belligerent’s policy of starvation as a method of warfare thwarts the endeavours of the ICRC to bring relief to all the victims and entails a degree of human suffering the international public conscience is not prepared to tolerate. I am convinced that in such extreme situations the Committee would not too loudly protest such independent actions, even if they only benefit the victims on the side to which it is being refused access. Traumatic crisis situations of the Biafra type have led not only to much public outcry but also to the emergence of new voluntary aid agencies such as Médecins sans Frontières and Médecins du Monde. These agencies sometimes claim that the human right of the victims to receive humanitarian assistance implies a right for the agencies to give such assistance, including the right to enter a country involved in armed conflict without the consent of the governmental authorities. Practice shows that in particular the latter part of the claim may involve them in serious difficulties, and prior consent may be an invaluable asset for a successful operation. Obviously, everything depends here on the situation. If in a country involved in internal armed conflict, the incumbent government exerts no more than nominal sovereignty over the part of the territory where the agency wishes to bring its aid, and if for the moment that relief action is the agency’s only concern, it may fairly safely pass over the formality of acquiring prior governmental consent. In the majority of less evident cases, however, an open application for admission appears to be the wiser course. There is also a growing awareness that while overt sympathy with the cause for which an insurgent movement is fighting may raise political or financial support at home, it does not necessarily help and may actually impede the accomplishment of the mission in the field. The lesson is, in other words, that impartiality and neutrality are valuable principles, not only for the Red Cross but for all those who wish to engage in humanitarian activities.

Chapter 46 International Humanitarian Law and Violation of Medical Neutrality*

1

Introduction

“Medical neutrality” is a term one will look for in vain in all of the conventions on international humanitarian law in force. Nor is the term free from all ambiguity: perhaps especially to the expert, it suggests a focus on the duty of medical personnel to perform their wartime functions without discrimination, rather than on the real topic of this paper, which is their desire, or need, to be protected from the effects of war. Yet, as we shall see, in days long past the word “neutrality” was used for a brief while in a sense directly relevant to our subject; and, it may be added, it was a Dutchman who appears to have introduced the term in that sense. Prior to coming to that, however, some remarks are in order about the notion of international humanitarian law, as the other half in the title of my present subject. As a term identifying a distinct branch of international law, “international humanitarian law” came into common use in the post-World War II era and thus represents a fairly recent addition to the international vocabulary. It also has remained a term with a somewhat uncertain content. For some, it is just another name for general international law, as a body of law that they feel is (or should be) entirely designed to serve the interests of human beings. Others (among whom I count myself ) prefer to give the notion a rather more restricted scope, but they split up when it comes to defining its precise limits. I need not go into these doctrinal disputes, for one thing because I think they are of strictly limited importance, and for another, because none of the experts will contest that no matter how defined, the notion contains a hard core that may simply be described as the law relating to the protection of the victims of armed conflicts, or more specifically as the law codified in the four Geneva Conventions of 1949 and further

* 1

Published earlier in G.L. Wackers and C.T.M. Wennekes (eds.), Violation of Medical Neutrality (1992). Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Convention (III) Relative to the Treatment of Prisoners of War, Convention (IV) Relative to the Protection of Civilian Persons in Time of War; all four Conventions signed at Geneva, 12 August 1949; authentic texts in 1 Final Record of the Diplomatic

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developed in the two Additional Protocols adopted in 1977. It is precisely this body of law that is relevant to today’s discussion, and for present purposes I may therefore use international humanitarian law as a synonym of this part of the law of armed conflict. At this stage of the proceedings I shall confine my comments to some striking aspects of this so-called law of Geneva. One is that from a modest start it has developed over the years into a very comprehensive body of law, dealing with all conceivable aspects of the protection of an ever growing circle of persons. Another point concerns its scope of application and notably the distinction between international and non-international armed conflicts. And a final comment will touch upon a fundamental characteristic of humanitarian law, as a body of law specifically designed to govern conduct in situations of armed conflict. As regards the first point, while at the outset (i.e., in 1864) the wounded and sick soldiers of armies in the field were the only persons protected under Geneva law, the classes of protected persons successively came to include their brethren at sea (1899), prisoners of war in 1929, and wounded and sick civilians and other especially vulnerable groups among the civilian population in 1949. Again, the two Additional Protocols of 1977 do not just improve the law relating to the protection of these categories of persons: they add rules for the protection of civilian populations of countries at war against the effects of hostilities. With this, however, we probably leave the safe ground of the hard core of Geneva law, and so we may leave it at that. The Geneva Conventions of 1949 stand out not only for their broad scope as far as classes of protected persons are concerned, but for another novel element as well: it is the introduction of rules specifically applicable in non-international

2

3 4

5 6

Conference of Geneva of 1949, pp. 205, 225, 243, 297; reprinted e.g. in D. Schindler & J. Toman, The Laws of Armed Conflicts (1988) pp. 373, 401, 423, 493. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts (Protocol II); both Protocols adopted at Geneva, 8 June 1977; 1 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974-1977) pp. 115, 185; text also in Schindler & Toman, pp. 621, 689. Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, signed at Geneva, 22 August 1864, text in Schindler & Toman, p. 279. Convention (III) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 22 August 1864, signed at The Hague, 29 July 1899; text in Schindler & Toman, p. 289. Convention Relative to the Treatment of Prisoners of War, signed at Geneva, 27 July 1929; text in Schindler & Toman, p. 339. Convention Relative to the Protection of Civilian Persons in Time of War, supra note 1.

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armed conflicts. While previous treaties were either silent or vague about their precise scope of application (usually saying no more than that they applied “in war”), the draftsmen of the Conventions of 1949 provided in carefully chosen language that they would apply in full “to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties” – that is to say, to international armed conflicts. And the Article that contains this formula, common Article 2, is followed by common Article 3 which for “the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties” provides that each party to the conflict shall then be bound to apply, as a minimum, a set of rules enumerated in the Article. This achieved two things: from a positive angle, it was for the first time ever that binding obligations upon parties to an internal armed conflict had been introduced into the law of Geneva. From a somewhat more pessimistic point of view, the category of internal armed conflicts had become irrevocably separated from the international ones, with just one Article governing the treatment of victims of the internal variety of armed conflict whereas the full text of the four Conventions applied to the international variety. In spite of later efforts to undo the separation, the dichotomy was unequivocally reaffirmed with the adoption in 1977 of the two Protocols additional to the 1949 Conventions, one for the protection of victims of international armed conflicts and the other, much shorter, for the protection of victims of internal ones. In this presentation, too, it will therefore be necessary to discuss international and internal armed conflicts separately. My last introductory remark concerns a fundamental feature of international humanitarian law. This typically reflects, and is bound to reflect, a precarious balance between two conflicting elements: viz., military necessity and humanity. The question may be asked whether one might not wish for a humanitarian law that instead of seeking this impossible balance would radically protect the values of humanity to the detriment of military requirements. Indeed, one might wish so, but it would be doomed to remain a matter of wishful thinking. International humanitarian law is designed to find its application in the turmoil of armed conflict. Its purpose is to mitigate the sufferings of war, not to make the conduct of war impossible; it is, in other words, jus in bello, not jus ad or contra bellum. To be applicable it must be realistic, taking into account the unavoidable realities of armed conflict. As we shall see, this requirement of realistic appraisal applies with equal force in relation to all that is connected with the protection of the wounded and sick as it does, for instance, in relation to the militarily speaking

7

Notably in the preparatory stage of the drafting of the 1977 Additional Protocols; see also F. Kalshoven, “Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: The Conference of Government Experts, 24 May-12 June, 1971”, in 2 NYIL (1971) p. 68, at pp. 77-78.

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more delicate question of the protection of civilian populations against the effects of hostilities. In the next part of this presentation I shall dwell at some length on the early history of international humanitarian law; not because I would believe this to be a conference of historians – which evidently it is not – but because much of what was said and done in those early years with respect to the role of medical personnel and the protection of the wounded and sick is entirely relevant to the present situation and could, indeed, have been said or written today. In a third section I shall then discuss the law applicable in international armed conflicts as codified in the Geneva Conventions of 1949 and Protocol I of 1977; and in a fourth, the law applicable in internal armed conflicts. And I shall round it all off with some conclusions. 2 The Early Years: 1863 to 1906 2.1

Memory of Solferino: Dunant and Basting

As is well-known, the development of international humanitarian law began in the 1860s, in the wake of the battle of Solferino (1859), a battle that had entailed a high number of casualties and had exposed the total inadequacy of the military medical services available on the scene for the care of the wounded. Having himself done what he could to bring relief to these victims, and haunted by the memories of the scenes he had thus been forced to witness, Henry Dunant in 1862 published a pamphlet, Un souvenir de Solferino, in which he described his experiences and put forward two suggestions, both aimed at overcoming the obvious shortcomings of the existing situation. In his words: “would it not be possible in time of peace and quiet to form relief societies for the purpose of having care given to the wounded in wartime by zealous, devoted and thoroughly qualified volunteers?” And, he added: could the authorities not be asked to arrive at “a convention inviolate in character, which, once agreed upon and ratified, might constitute the basis for societies for the relief of the wounded in the different European countries? So, he proposed two things: national relief societies in each country, and a convention to provide them with a solid basis in their country. His Souvenir de Solferino spread rapidly over Europe, beginning of course in Geneva. In this town a committee of five prominent citizens, including Dunant, was set up to promote his ideas. Among its many enthusiastic readers outside Switzerland was Dr. J.H.C. Basting, a Dutch medical officer. Reflecting on what Dunant had proposed, he realized that in addition to Dunant’s suggestion of 8

The above quotations are from the English translation of Dunant’s original text in P. Boissier, From Solferino to Tsushima, History of the International Committee of the Red Cross (1985) p. 40. Much of what follows is derived from Boissier’s excellent book.

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having voluntary nurses make up for the apparent shortcomings of the military medical services, it was also “necessary to ensure that such auxiliaries would be able to carry out their duties in any situation, and be recognized as not being involved in the conflict. They should be neither attacked nor taken prisoner. This [adds Pierre Boissier, the author who has brilliantly and authoritatively described this history] is the point at which the notion of neutrality for medical personnel comes in, a notion which Basting considered essential … In contrast, the committee [in Geneva] had restricted itself to proposing the setting up of societies for assistance to the wounded.” When Dunant met Basting in 1863 and was confronted with the latter’s idea of neutrality for medical personnel, he “was caught between two stools, but not for long. He lined up with Basting and, together, they promoted the concept of neutrality.” 2.2

Geneva Conference of 1863: Neutrality of Relief to Wounded Combatants and Role of Voluntary Relief Societies

The fruits of their concerted promotion activities were soon apparent in the outcome of an international conference of government representatives and other prominent people who assembled in Geneva in October 1863.The meeting, convened by the Geneva Committee, had as its purpose to discuss, on a private basis, a draft convention the Committee had prepared on the matter of assistance by voluntary relief societies to the work of the military medical services. The final document it drew up is in two parts: one, a series of ten resolutions on the establishment and functioning of relief societies (or Committees, as the conference styled them) and, second, three recommendations on the relations of governments to these so-called Committees. One of the proposals before the conference, reflecting Basting’s idea, was that “governments should declare that military medical personnel and their assistants, including members of recognized voluntary aid detachments are neutral and will be regarded as such by nations at war.” The conference enthusiastically endorsed this suggestion; as Boissier notes, the delegates “were aware of the fact … that because physicians and nurses had been considered as combatants several of them had been killed or wounded during the fighting. While this was not contrary to the customs of warfare … such acts of war were profitable to no one since surgeons and nurses were non-combatants whose role was to tend the wounded who were disabled. Besides, an enemy surgeon taken prisoner was useful in that he could tend his wounded compatriots and thus relieve the medical service of this task.” Indeed, the benefits of the concept of neutrality could 9 10 11

Ibid., p. 62. Schindler & Toman, p. 275; on the history of the conference, see Boissier, op. cit. note 8, p. 70 et seq. Boissier, op. cit. note 8, p. 79.

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usefully “be extended to the civilian population coming to the assistance of the wounded … Rather than fearing punishment for having helped the wounded of the other side, civilian populations should be made to understand that refusal to assist military medical officers was a punishable offence.” Taking all this into consideration, the conference did not hesitate to accept the suggestion, and it formulated the recommendation “that in time of war the belligerent nations should proclaim the neutrality of ambulances and military hospitals, and that neutrality should likewise be recognized, fully and absolutely, in respect of official medical personnel, voluntary medical personnel, inhabitants of the country who go to the relief of the wounded, and the wounded themselves.” In contrast with this new concept of neutrality, another idea made many delegates bristle with indignation: it was the very suggestion that the military medical services were inadequate to perform their tasks and needed the assistance of voluntary relief societies. Eventually (and with a good deal of diplomacy by the chairman, Gustave Moynier) these objections were overcome and the conference included in its final document a series of resolutions on the establishment and functioning of the relief Committees. The first resolution is worth quoting in full: it firmly proclaims that “Each country shall have a Committee whose duty it shall be, in time of war and if the need arises, to assist the Army Medical Services by every means in its power.” It should be noted, though, that the final document opens with a preambular paragraph which, reflecting the earlier misgivings of several participants, specifies that the conference was “desirous of coming to the aid of the wounded should the Military Medical Services prove inadequate …” Elements of note in the resolutions are the following. The task of the Committees in countries at war would be to assist their respective armies and, to that end, to “organize voluntary personnel and place them on an active footing”; they would moreover, “in agreement with the military authorities … have premises made available for the care of the wounded.” And while this would be rear-area activity, another resolution states that “On the request or with the consent of the military authorities, Committees may send voluntary medical personnel to the battlefield where they shall be placed under military command.” Yet another resolution specifies that voluntary medical personnel attached to armies should “wear in all countries, as a uniform distinctive sign, a white armlet with a red cross.” It was obvious that a distinctive emblem, whether this one or another, ought to be worn by the military medical services as well. Accordingly, the conference also recommended “that a uniform distinctive sign be recognized for the Medical Corps of all armies, or at least for all persons of the same army belonging to this Service; and that a uniform flag also be adopted in all countries for ambulances and hospitals.”

12

Text of the resolutions and recommendations in Schindler & Toman, p. 275; the italics in the text are mine.

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Commenting on these events, Boissier points out that while “one of the specific purposes of the emblem [was] to designate persons entitled to claim neutrality”, there was another for the volunteers of the Committees, viz., “the need to show that they [were] members of an aid society. Their armband would, thus, distinguish them from simple civilians and other volunteers coming to the assistance of the wounded … The army would recognize in this way that it was dealing with members of an aid society officially recognized in peacetime …” To recapitulate: the international conference of 1863 gave the green light to the establishment in all countries of Committees to assist the military medical services in bringing relief to the wounded – the later Red Cross societies; these would cooperate closely with the respective governments, and their voluntary personnel when engaged in actual battlefield service would be placed under military command. The volunteers of the Committees would wear a white armlet with a red cross, and it was recommended that a distinctive emblem be introduced for the military medical services as well. And finally, the conference recommended without a moment’s hesitation that all those coming to the relief of the wounded, and the wounded themselves, be recognized as neutral. 2.3

Geneva Conference and Convention of 1864: Neutrality Codified

With this, the scene was set for the International Conference for the Neutralization of Army Medical Personnel in the Field that met in August 1864, once again in Geneva but this time at the invitation of the Swiss Federal Counci1. This diplomatic conference adopted after due deliberation but without any major difficulties the Convention for the Amelioration of the Condition of the Wounded in Armies in the Fie1d. Ironically, the only problem to arise in the course of its deliberations concerned the scope of the term “medical personnel”: would it cover voluntary assistants as well? With respect to this question, the French delegate was adamant: as it appeared, he was under strict instructions not to sign a convention implying the existence of voluntary nurses. In consequence, they are not mentioned in the text of the convention; but the common understanding was that for all practical purposes they were included nonetheless, since when working alongside the military surgeons they “would be subject to army discipline and would be, more or less, incorporated in army ranks. There would be almost no distinction between them and their army colleagues and, no doubt, in practice they would be treated in the same manner.” So there was really no need to make specific mention of them.

13 14 15 16

Boissier, op. cit. note 8, p. 76. Ibid., p. 114. Supra, note 3; on its drafting history, see Boissier, op. cit. note 8, p. 114 et seq. Ibid., p. 116.

1000 Chapter 46 While thus the persons who a year earlier had held the centre of the stage, this time were the only ones to cause some controversy, even to the extent that they ultimately failed to be mentioned in the Convention, the diplomatic conference generously held out the prospect of neutrality to “inhabitants of the country who bring help to the wounded”. Article 5 provides that such persons “shall be respected and shall remain free”, and it requires “generals of the belligerent Powers [to] make it their duty to notify the inhabitants of the appeal made to their humanity, and of the neutrality which humane conduct will confer.” The greater part of the ten Articles that constitute the Convention deal with ambulances and hospitals and their personnel, and in each case, neutrality is provided for. In this respect, the terms of Article 1 are worth quoting: it provides that: Ambulances and military hospitals shall be recognized as neutral and, as such, protected and respected by the belligerents as long as they accommodate wounded and sick. Neutrality shall end if the said ambulances or hospitals should be held by a military force.

We shall shortly have occasion to come back to this form of words. Meanwhile, it should be noted that the wounded and sick are also mentioned: Article 6 provides that “Wounded and sick combatants, to whatever nation they may belong, shall be collected and cared for.” The term neutrality is not used in relation to the wounded and sick: rather, the Article goes on to distinguish between those who “after their recovery, are recognized as being unfit for further service” (and who must unconditionally be repatriated) and the others, who may be sent back but only “on condition that they shall not again, for the duration of hostilities, take up arms.” In striking contrast, the closing paragraph of the Article provides that those who come to their aid or the battlefield, i.e., the “evacuation parties, and the personnel conducting them, shall be considered as being absolutely neutral.” As regards the use of a distinctive emblem, Article 7 provides that “A distinctive and uniform flag shall be adopted for hospitals, ambulances and evacuation parties.” When it came to other “personnel enjoying neutrality” the draftsmen were decidedly more reticent, and they laid down that “An armlet may also be worn by [such personnel] but its issue shall be left to the military authorities.” The Article adds, finally, that “Both flag and armlet shall bear a red cross on a white ground.” In sum, the Geneva Convention of 1864 formally (or, in the case of the voluntary nurses, implicitly) recognizes the neutrality of the formations, establishments and personnel designated to aid wounded and sick combatants, and it provides for the use of the red cross emblem, where necessary under military control. It also lays down the basic rule that the wounded and sick shall be collected and cared for, without going to the length of declaring them neutral as well.

International Humanitarian Law and Violation of Medical Neutrality 1001 This brings up the question what Basting and those who had so enthusiastically endorsed his idea understood by the term “neutrality”: did they really mean to suggest that an ambulance, a surgeon of the military medical service or an evacuation party were neutral in the same sense, say, that Switzerland is neutral? This does not appear to be the case, as is probably most clearly evidenced by the language of Article 1 of the Convention. As quoted earlier, this Article provides that ambulances and hospitals “shall b recognized as neutral and, as such, protected and respected by the belligerents as long as they accommodate wounded and sick.” Neutrality, in other words, meant an entitlement to respect and protection on the part of the belligerents, and this, as evidenced by the closing phrase, on a strictly functional basis rather than as a sort of inherent right. 2.4

Conventions of 1899 and 1906: Neutrality Substituted with Respect and Protection

One may wonder whether neutrality was ever a particularly appropriate term to reflect Basting’s original idea. In any event, it was soon abandoned. The first stage was the adoption, in 1899, of a Hague Convention adapting the principles of the Geneva Convention of 1864 to naval warfare: while the term “neutral” figures frequently in the Convention, it is without exception in relation to the neutrality of States not participating in the armed conflict. As regards the key figures in the task of bringing assistance to the wounded, sick and shipwrecked at sea, i.e., the military or other hospital ships, the Convention confines itself to providing that these “shall be respected and cannot be captured while hostilities last.” Seven years later, in 1906, a conference convened by the Swiss Government undertook the revision of the Geneva Convention of 1864, and it wound up with a entirely new text which superseded (and in many respects improved) the earlier Convention. The point that primarily interests us here is that the new Convention no longer utilizes the term “neutrality” to indicate the status of protected establishments or persons. Nor had this change come about as-it-were by accident: on the contrary, as the report of the Conference shows, it had been an entirely deliberate choice. While a questionnaire sent out by the Swiss Federal Council shortly before the Conference still used the term, a British project for a revised convention submitted at the outset of the proceedings specifically rejected it. And 17

18 19 20

Convention (III) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 22 August 1864, signed at The Hague, 29 July 1899; for text, see Schindler & Toman, p. 289. Interestingly (and probably correctly so), Boissier interprets this as simply the same as the neutrality of 1864; op. cit. note 8, p. 372. Actes de la Conférence de révision réunie à Genève du 11 juin au 6 juillet 1906, p. 16. Ibid., p. 60: “‘Inviolable’ has, throughout the draft, been substituted for ‘neutre’, the mis-use of which latter term in the old Convention has long been deservedly criticised.”

1002 Chapter 46 once the work in commissions had taken off, it was Professor T.E. Holland who, speaking for the United Kingdom, formally proposed in the Second Commission to substitute the term by “inviolability” throughout the Convention. That the latter term would not represent a real improvement was thereupon convincingly demonstrated by Professor L. Renault, prominent member of the French delegation. His suggestion was to speak instead of the duty to respect and protect the objects and persons in question. This is what the Conference chose to do. In his report to the Plenary Conference on behalf of the Drafting committee, Renault develops his argument in terms that have lost none of their relevance, especially in relation to the topic of today’s conference, and they therefore deserve to be repeated here in some detail. It is not merely, writes Renault, that medical personnel cannot shed their nationality: to say that doctors are neutral would suggest that they are indifferent with respect to the conflict that sets the fate of their country at stake; they are, in actual fact, enemies, albeit enemies with a special task, and protection and special immunities must be accorded them precisely to enable them to perform that task. Even less admissible is the indication of ambulances and hospitals as neutral: taken literally, this would imply that the enemy is not entitled to exert control over such objects once they have fallen in his hands. Repeating the point made earlier at the meeting of the Second Commission, Renault explains that rather than using the incriminated words, it is both preferable and possible to formulate in concrete terms the consequences one wishes to draw in each case from the abstract principle of neutrality. Thus, with respect to ambulances and hospitals it suffices to provide that they must be protected and respected: this already indicates that a belligerent must not fire at such objects and must permit them to continue to function when they fall into his power. To replace “neutrality” with “inviolability” brings no improvement: the latter term is neither useful nor free from confusion. To demonstrate his point, Renault reverts once again to the medical doctors: to say that they are “inviolable” might lead one to believe that they are sheltered from the risks run by their army comrades, and the consequence might be less consideration for their position. This 21 22

23

Ibid., p. 110: 2nd session of the Second Commission. Ibid., and p. 124: report of the Second Commission to the Plenary Conference: “On trouve dans la Convention de 1864 les expressions ‘neutre’ ou ‘neutralité’ qui soulèvent depuis longtemps des critiques, parce qu’il paraît indiscutable que les personnels sanitaires ne peuvent pas dépouiller leur nationalité. Un membre de la Commission [i.e., Holland] a demandé que ces mots fussent respectivement remplacés par ‘inviolable’ et ‘inviolabilité’; mais [Renault] a démontré par la lecture d’un extrait de rapport établi pendant la Conférence de la Paix à la Haye que ces dernières expressions étaient loin d’être elles-mêmes irréprochables et que la situation des personnels couverts par la Convention se trouverait plus exactement définie quand on aurait dit d’eux qu’ils doivent être respectés, protégés et ne pas être fait prisonniers.” Ibid., p. 247.

International Humanitarian Law and Violation of Medical Neutrality 1003 would be totally unjustifiable: after all, doctors who accompany the armies perform a particularly difficult and dangerous function without having the excitement of the combat. Figures from recent wars provided irrefutable evidence that the risks they run are far from imaginary, and there was no ground to draw a line dividing the men who serve their country in perilous and equally honourable circumstances. The main point, Renault concluded, is that the medical personnel willingly accept the immunities accorded them and the public is not made to regard these as favours, whilst they are nothing but the means considered indispensable for them to be able to perform their beneficial role. Apart from this important point of the formal and thoroughly reasoned abandonment of “neutrality” as a term of art in the Geneva Conventions to describe the status of protected establishments and personnel, other significant features of the new Convention of 1906 concern the position of the wounded and sick and of voluntary relief societies and the use of the emblem. With respect to the first item it may be noted that the wounded and sick had moved up from Article 6 (as in the Convention of 1864) to Article 1, thus gaining their rightful place. As they are not the main subject of today’s meeting, we need not enter here into the many, often hard-fought changes the new Article 1 brings in comparison to its predecessor. The personnel of voluntary aid societies are explicitly mentioned in Article 10. This sets forth the circumstances in which they shall enjoy protection: first, the societies they belong to must be “duly recognized and authorized by their own governments.” Then, respect and protection are accorded only those persons who are “employed in the sanitary formations and establishments of armies” and who are then “assimilated to the personnel [of the army medical service], upon condition that the said personnel shall be subject to military laws and regulations.” And with respect to a “recognized society of a neutral State” Article 11 specifically provides that this “can only lend the services of its sanitary personnel and formations to a belligerent with the prior consent of its own government and the authority of such belligerent.” It may be added that this element of authorization by the belligerent in question applies equally in respect of the personnel of that belligerent’s own voluntary aid society: it is, in effect, so obvious that it needed not be specified. As for the distinctive emblem, Article 18 states formally that “Out of respect to Switzerland, the heraldic emblem of the red cross on a white ground, formed by the reversal of the federal colours, is continued as the emblem and distinctive sign …” Of greater interest than this rather dubious though time-honoured reference to the Swiss flag as the source of inspiration of the red cross, is the fact that the Conference had given a negative answer to a question the Swiss Federal Council had raised in its questionnaire: viz., whether besides the red cross, other emblems might be exceptionally admitted, as for instance with Turkey, which

1004 Chapter 46 had adopted a red crescent instead. In the Fourth Commission, where the question was dealt with as a priority issue, the general feeling was that unity and universality of the emblem used were of prime importance; and as (in the absence of Turkey, which was not represented at the Conference) none of the delegates was prepared to state that to his mind, or in his experience, the red cross had a religious connotation, the suggestion implicit in the Swiss question was unanimously rejected. As regards the actual use of the emblem, the Convention twice repeats that this is reserved to the formations, establishments and personnel protected under the Convention. Article 21 provides in part that “The distinctive flag of the convention can only be displayed over the sanitary formations and establishments which the convention provides shall be respected, and with the consent of the military authorities.” As well, Article 23 provides that “The emblem of the red cross on a white ground and the words Red Cross or Geneva Cross may only be used, whether in time of peace or war, to protect or designate sanitary formations and establishments, the personnel and matériel protected by the convention.” It should be emphasized that these rules were not introduced to provide national Red Cross societies with a privileged position: their purpose was and is, rather, to reserve to the authorities in each country the power to determine which institutions besides the military medical services shall be entitled to display the distinctive emblem in accordance with the Convention, as well as the circumstances of such display. It also bears some emphasis that as far as Red Cross societies are concerned, it was their role in assisting, in close cooperation with the authorities, the armies of their own country that qualified them to use the emblem to the exclusion of other potential volunteers. Specifically, although “the inhabitants” are once again invited to display their “charitable zeal” in receiving and caring for wounded combatants, and while Article 5 holds out to those who do this “special protection and certain immunities”, this does not include the use of the distinctive emblem. To summarize our findings, the Conference of 1906 officially shelved the term “neutrality” as an adequate, abstract description of the status of medical personnel and members of volunteer aid societies. In setting forth the reasons for this move, it contributed greatly to clarifying the role and position of such personnel, their relations to their own side in the conflict and the risks they are exposed to in the performance of their tasks, and all this, to quote Renault, without the excitement of actual battle. Most important of all, the Conference made the point clear that the respect and protection granted such personnel are nothing but an indispensable concomitant of their beneficial functions.

24 25

Actes, p. 17. Ibid., p. 162: 2nd session of the Fourth Commission; p. 193: report to the Plenary Conference.

International Humanitarian Law and Violation of Medical Neutrality 1005 The Conference also corrected some inadequacies of the Convention of 1864, by moving the wounded and sick combatants to the place where they rightly belong, i.e., the opening Article of the new Convention; by expressly recognizing the possibility for personnel of recognized voluntary aid societies to participate in the relief work under the same conditions of respect and protection as the military medical personnel, and by regulating in detail the use of the red cross as distinctive emblem, reserving it in all cases to those entitled to such use under the Convention and where appropriate with the requisite authorization of the military authorities. 3

1949 and 1977: The Existing Law Relating to International Armed Conflicts

3.1 The Fourth Geneva Convention of 1949: Civilians as Protected Persons In 1929, a diplomatic conference met in Geneva to revise the Convention of 1906, and it also added a new Convention Relative to the Treatment of Prisoners of War. Even with the new addition, no matter how important, the circle of victims of armed conflict protected under specific Geneva law had remained unchanged: it still consisted only of the members of armed forces. We may therefore pass over this event in silence, except for noting that this time, both the red crescent and the red lion and sun were officially recognized as distinctive emblems. Matters changed radically with the adoption, in 1949, of four Geneva Conventions, with one entirely devoted to the protection of civilians. In this Fourth or Civilians Convention, and limiting ourselves for the moment to those parts applicable in international armed conflicts (i.e., all articles minus one, common Article 3), two sets of provisions are of particular interest to the present topic of “medical neutrality”. One is the articles relating to the protection of the wounded and sick and other especially vulnerable categories of civilians, in Part II, General Protection of Populations Against Certain Consequences of the War (Article 14 et seq.) The other set of provisions one finds dispersed over the 26

27 28

29

The result is the Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, signed at Geneva, 27 July 1929; for text, see Schindler & Toman, p. 325. Text in Schindler & Toman, p. 339. Art. 19(2) of the revised Geneva Convention. See also the commentary by Paul des Gouttes, published by the ICRC, 1930. It should be noted that the Lion and Sun, although still mentioned in the treaties in force, is no longer in use: with the fall of the Shah, the new regime in Iran substituted the Crescent for what it considered as a symbol of the old regime. Supra, note 1. As for our purposes, Convention I relating to the protection of the wounded and sick of armies in the field, does not significantly differ from its predecessor of 1929, we shall pass it over in silence.

1006 Chapter 46 Convention and they relate to the health of civilians qualifying as protected persons under this instrument. To explain what makes the first set of provisions and, indeed, the whole Part II stand out among the remaining parts of the Fourth Convention, it is necessary to point to an element essential to the Geneva Conventions. From 1864 onwards, they provide “respect and protection” for specified categories of people who with each revision are defined with increasing precision. “Protected person”, as used in the Conventions, has thus become a term of art. Convention IV constitutes no exception to this general rule: Article 4 carefully defines the categories of “persons protected by the Convention”. We shall shortly come back to this definition. For the moment, the point is that in stark contrast with this general scheme, Part II is not so restricted in its scope; as provided by Article 13, its provisions “cover the whole of the populations of the countries in conflict … and are intended to alleviate the sufferings caused by war.” It applies, in other words, to all persons, irrespective of nationality, who find themselves in “a territory belonging to or occupied by a party to the conflict.” And most of its provisions deal precisely with care to the wounded and sick. Within the confines of this paper we cannot pay equal attention to each and every one of these provisions; yet some general indications may be useful. The articles in question are designed to provide, in various circumstances, a measure of protection to such categories of especially vulnerable persons as the wounded and sick, aged persons, children, and maternity cases. The circumstances in which protection is needed range from long-distance aerial bombardment to battle between opposing ground forces and military occupation; and the modalities of protection vary accordingly. Thus, Article 14 discusses the establishment of hospital and safety zones which, situated well beyond the zone of operations and upon mutual agreement between the belligerent parties, shall be completely protected from attack. In the same vein, Article 15 goes into the possibility of establishing “neutralized zones”, this time in “regions where fighting is taking place”. While the above zones are designed to protect given categories of people by assembling them in well-defined areas, Article 16, taking a different approach, establishes the general principle that “The wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particular protection and respect.” As an obvious sequel to this general obligation, parties to the conflict are bound to “facilitate the steps taken to search for the killed and wounded.” In practice, this often requires close cooperation between the military and civilian authorities and institutions, including the voluntary aid societies, since certainly in our times, casualties of either category are apt to be found in the same areas. Accordingly, Article 22(5) of the First Convention specifically provides that a military medical unit or establishment shall not lose its protection if its humanitarian activities, 30

Jean S. Pictet, ed., The Geneva Conventions of 12 August 1949, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958) p. 119.

International Humanitarian Law and Violation of Medical Neutrality 1007 including those of its personnel, “extend to the care of civilian wounded and sick.” And conversely, it is nowhere indicated that civilian aid personnel would stand to lose its protection when it extends its care to wounded or sick combatants. Article 17 once again applies to specific localities, although not this time ones of protection but of enhanced risk, viz.: “besieged or encircled areas”. Giving specific elaboration to the general principle of protection and respect, it urges the parties to “conclude local agreements for the removal” from these areas of the wounded and sick and other named categories of vulnerable people, and “for the passage of ministers of all religions, medical personnel and medical equipment on their way to such areas.” Article 18 provides that “Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases, may in no circumstances be the object of attack but shall at all times be respected and protected by the Parties to the conflict.” This text does not specify who shall be the wounded and sick entitled to its protection. In a Civilians Convention, it stands to reason that civilians will certainly qualify as such. In many countries, it is quite normal for civilians to find their health care in civilian hospitals and at the hands of civilian doctors, whereas the military may have their own facilities. However, the division need not be rigid either way. Accordingly, the civilian hospitals of Article 18 may have civilians as their prime clients but the military are not excluded. This is evident in Article 19, according to which the protection of civilian hospitals “shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy.” Obviously, the treatment of a wounded combatant is an act harmful to the enemy; but it is, first and foremost, a humanitarian activity. What is a “civilian hospital”? Article 18 provides no further indications than that it must be organized to the ends quoted above. These terms may be interpreted more or less liberally, and it is very much a matter for each State to choose its own approach. In this respect, it may be noted that Article 18 provides that the State “shall provide all civilian hospitals with certificates showing that they are civilian hospitals and that the buildings which they occupy are not used for any purpose which would deprive these hospitals of protection” in accordance with Article 19. While the obligation is formulated as an absolute one, it remains a matter for the competent authorities to determine that a given establishment actually meets their criteria of a civilian hospital. In The Netherlands, for instance, it is the Ministry of Health that holds competence in this matter. Always according to Article 18, civilian hospitals “shall be marked” by means of the distinctive emblem, however, “only if so authorized by the State. In The Netherlands, as probably in many other countries, competence in this regard lies with the military authorities, and their decision in a situation of armed conflict will depend on a variety of considerations including operational ones. 31 32

Ibid., p. 135 et seq. Ibid., p. 141 et seq.

1008 Chapter 46 Coming to the hospital staff, Article 20 defines the personnel who are entitled to respect and protection as those persons “regularly and solely engaged in the operation and administration of [certified] civilian hospitals, including the personnel engaged in the search for, removal and transporting of and caring for wounded and sick civilians, the infirm and maternity cases.” The Article also provides that in zones of military operations as well as in occupied territory, such personnel shall be recognizable, both by an identity card and, while on duty, by an armlet with the distinctive emblem. Skipping over Articles 21 and 22 (which deal with medical transport), it remains to mention Article 23 which lays on each contracting State the obligation in principle to “allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary.” As is apparent from the remainder of the Article, the obligation is qualified by a series of conditions which, however, need not be exposed here. Part III of Convention IV, as evidenced by its title, is confined to the “status and treatment of protected persons”. Here it becomes necessary to take into account the definition of “protected persons” in Article 4: they are “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” Article 4 goes on to make exceptions to this general definition. In the present context, I need only mention the rather self-evident exclusion of all those who are protected by the other three Geneva Conventions, i.e., in the main, members of the armed forces who find themselves in the hands of the enemy. Part III deals with two specific situations: that of protected persons in the territory of a Party to the conflict, and that of such persons in occupied territory. Provisions most relevant to the present subject may be found in Section III, on Occupied Territories. They are Articles 56 and 57 which deal with hospitals and medical personnel, and Article 63 on the position of national Red Cross or Red Crescent societies and other relief societies. In connection with the latter Article mention shall also be made of Article 30 in the opening section of Part III (which contains provisions common to either situation). Article 56 lays a duty on the Occupying Power to ensure and maintain “to the fullest extent of the means available to it” and “with the cooperation of national and local authorities, the medical and hospital establishments and services, public health and hygiene in the occupied territory.” Article 57 restricts the power of the Occupying Power to requisition civilian hospitals: it may do so “only temporarily and only in cases of urgent necessity for the care of military wounded and sick, and then on condition that suitable arrangements are made in due time for the care and treatment of the patients and for the needs of the civilian population for hospital accommodation.” These provisions appear to strike a reasonable balance between the needs of the occupied population and those of the Occupying Power.

International Humanitarian Law and Violation of Medical Neutrality 1009 It is worthy of note that, far from being confined to the protection of hospitals alone, the object of Article 56 is public health and hygiene in the broadest sense. Particularly striking in Article 56 is the closing sentence of the first paragraph: “Medical personnel of all categories shall be allowed to carry out their duties.” Commenting on this provision, the ICRC states that in view of their duties, medical personnel “must therefore be exempted from any measures (such as restrictions on movement, requisitioning of vehicles, supplies or equipment) liable to interfere with the performance of their duty.” And it specifies that the provision should be taken to apply to “all people engaged in a branch of medical work: doctors, surgeons, dentists, pharmacists, midwives, medical orderlies and nurses, stretcher bearers, ambulance drivers, etc., whether such persons are or are not attached to a hospital.” This would indeed be the maximum one might hope to achieve in the sphere of freedom from interference for all those engaged in, or connected with, health care. The Commentary correctly adds that the rule in Article 56 does not entail a right to use the red cross emblem: as noted earlier, Article 20 expressly reserves this right to hospital staff. Of tremendous importance to recognized national Red Cross or Red Crescent societies is the provision in Article 63, that they shall in principle “be able to pursue their activities in accordance with [established] Red Cross principles.” This right is subject only to “temporary and exceptional measures” imposed by the Occupying Power “for urgent reasons of security”. And with the same proviso, the Occupying Power is precluded from “requir[ing] any changes in the personnel or structure of these societies, which would prejudice the aforesaid activities.” The history of the Second World War learns how indispensable these rules are. Another provision of interest to national societies is Article 30, stating in relevant part that protected persons “shall have every facility to make application to the Protecting Powers, the International Committee of the Red Cross, the National Red Cross (Red Crescent, Red Lion and Sun) Society of the country where they may be.” Especially as regards the national societies, the Commentary of the ICRC explains that they have been mentioned “as a tribute to the enormous amount of work which they accomplished on behalf of civilian victims of the war.” But it hastens to add a note of caution which is of sufficient interest to be quoted in full: In a belligerent country or a country involved in the conflict, the National Red Cross Society has not the same degree of independence as the Protecting Powers (which cannot of course be Parties to the conflict) or the International Committee of the Red Cross (whose members are citizens of a neutral State).

33

Ibid., p. 314.

1010 Chapter 46 The National Societies have in fact close bonds with the country in which they do their work.

Continuing on this matter of close bonds, the Commentary cautions that while in occupied territory the right of communication of Article 30 is of greatest importance, national societies: must be careful not to promote hostile action against the occupation forces, under the cover of relief activities. Patriotic feelings may make this temptation a strong one; but to give way to it would inevitably cause the collapse of a system built up with such pains.

The comment is unquestionably correct, including the reference to the “system built up with such pains” and, indeed, so easily destroyed. A national society in occupied territory must continue its activities in accordance with Red Cross principles, i.e., with complete impartiality and neutrality, without ever taking sides in hostilities or in the conflict. What cannot and must not be expected, though, is for its members to be neutral in the Swiss sense. One is irresistibly reminded here of Renault’s comments in relation to the position of doctors as members of the military medical services: no more than these doctors can the personnel of a national society in occupied territory be “indifferent with respect to the conflict that sets the fate of their country at stake; they are, in actual fact, enemies [of the Occupying Power], albeit enemies with a special task, and protection and special immunities must be accorded them precisely to enable them to perform that task.” It is here the proper place to make mention of the role and position of the ICRC in bringing aid to the wounded and sick and other victims of armed conflict. Although its delegates are not listed anywhere among the medical personnel entitled to protection on account of the functions they perform, they do in fact carry out such tasks among the many other ways in which they seek to protect and bring relief to the victims of armed conflict. One provision, common to the four Geneva Conventions of 1949, recognizes this role: in Convention IV it is Article 10, providing that nothing in the Convention constitutes an obstacle to “the humanitarian activities which the International Committee of the Red Cross or any other impartial humanitarian organization may, subject to the consent of the Parties to the conflict concerned, undertake for the protection of civilian persons and for their relief.” In practice, and whenever the Committee has obtained the requisite consent to perform its activities in a country at war, this implies the use of the red cross as a distinctive and, often, protective emblem.

34 35

Ibid., p. 216. Ibid., p. 217.

International Humanitarian Law and Violation of Medical Neutrality 1011 3.2 The New Rules in Protocol I of 1977 After all the complexities of treaty law as embodied in the Geneva Conventions of 1949, the new set of rules in Part II of Additional Protocol I of 1977 relating to the treatment of the wounded and sick is refreshingly simple. It provides clear definitions of “wounded” and “sick”, of “medical personnel” and “medical units”, etc. (Art. 8); the field of application has been clearly defined (Art. 9), and the substantive rules are set out in logical order (Arts. 10-20). Most important, the rules of Part II are applicable to all the wounded and sick, without any discrimination (or “adverse distinction”, as Art. 9 styles it) and whether they belong to the military or to the civilian population. Obviously, this does not mean the abolition of the military medical services and the civilian health services as separate institutions, nor indeed the disappearance of combatants and civilians as distinct categories: on the contrary, the Protocol contributes greatly to reaffirming and clarifying the latter distinction. The definition of “wounded” and “sick” in Article 8(a) is extremely broad: it covers all those “who, because of trauma, disease or other physical or mental disorder or disability, are in need of medical assistance or care and [a recurring theme throughout the Part] who refrain from any act of hostility.” And, for good measure, the terms are stated as well to cover “maternity cases, new-born babies and other persons who may be in need of immediate medical assistance or care, such as the infirm or expectant mothers …” [and here follows the refrain]. Equally broad is the definition in Article 8(e) of “medical units”; the term encompasses: establishments and other units, whether military or civilian, organized for medical purposes, namely the search for, collection, transportation, diagnosis or treatment – including first-aid treatment – of the wounded, sick and shipwrecked, or for the prevention of disease. The term includes, for example, hospitals and other similar units, blood transfusion centres, preventive medicine centres and institutes, medical depots and the medical and pharmaceutical stores of such units. Medical units may be fixed or mobile, permanent or temporary.

One might be hard put to it to think of any significant component part of the health services that is not included in this catalogue. Somewhat greater reticence is noticeable when it comes to defining “medical personnel”: as defined in Article 8(c), they are “those persons assigned, by a Party to the conflict, exclusively to the medical purposes enumerated under subparagraph (e) or to the operation or administration of medical transports.” The crux lies in the requirement of assignment, implying some measure of State control 36

Notably in Arts. 43 and 44 defining combatant status and Art. 50 defining civilians and the civilian population.

1012 Chapter 46 over personnel performing their duties in the framework of a hospital or other organized medical unit. As the Article specifies, such assignments “may be either permanent or temporary.” In greater detail, the term includes medical personnel “of a Party to the conflict, whether military or civilian …”and “of national Red Cross (Red Crescent, Red Lion and Sun) Societies and other national voluntary aid societies duly recognized and authorized by a Party to the conflict.” Articles 8 and 9 also mention the medical personnel attached to permanent medical units and transports “made available to a Party to the conflict for humanitarian purposes” by a neutral State or a “recognized and authorized aid society of such a State” or, again, “by an impartial international humanitarian organization.” That the personnel in the latter categories has been “made available to a Party to the conflict” implies their express acceptance by that Party. That the generosity in defining medical units is more apparent than real comes to light when one turns next to the rules on protection of such units. Still in its ostensibly generous mood, Article 12(1) proclaims that the units “shall be respected and protected at all times and shall not be made the object of attack.” But paragraph 2, confining itself to civilian medical units (the military ones being adequately provided for in Convention I) specifies that to qualify for this special protection they must either “belong to one of the Parties to the conflict”, be “recognized and authorized by the competent authority” of such Party, or be authorized as provided in the aforementioned Article 9. Here we meet once again the requirements of recognition and authorization by competent authorities as already laid down in Convention IV with respect to civilian hospitals. For civilian medical units to retain their protection, they must not (in a by now well-known formula) be “used to commit, outside their humanitarian function, acts harmful to the enemy.” It may be useful to quote here the circumstances that, according to Article 13, “shall not be considered as acts harmful to the enemy”: a)

b) c) d)

37

that the personnel of the unit are equipped with light individual weapons for their own defence or for that of the wounded and sick in their charge; that the unit is guarded by a picket or by sentries or by an escort; that small arms and ammunition taken from the wounded and sick, and not yet handed to the proper service, are found in the units; that members of the armed forces or other combatants are in the unit for medical reasons.

See also, Michael Bothe, Karl Joseph Partsch and Waldemar A. Solf, New Rules for Victims of Armed Conflicts (1982) p. 97 et seq.

International Humanitarian Law and Violation of Medical Neutrality 1013 In order to enhance the possibilities of protection of civilian medical units, Article 12 invites the Parties to the conflict “to notify each other of the location of their medical units.” It forbids the use of such units “in an attempt to shield military objectives from attack”, and “the Parties to the conflict shall ensure that medical units are so sited that attacks against military objectives do not imperil their safety” – however, only “whenever possible”. Needless to say, examples abound of medical units situated even extremely close to military objectives. While the obligation to respect and protect civilian medical personnel is embodied in Article 15(1), paragraph 4 grants them “access to any place where their services are essential, subject to such supervisory and safety measures as the relevant Party to the conflict may deem necessary.” Especially regarding areas of combat activity, paragraph 2 provides that “If needed, all available help shall be afforded to civilian medical personnel in an area where civilian medical services are disrupted” by reason of such activity. And when it comes to occupation, paragraph 3 specifies that the Occupying Power is under a duty to afford such personnel “every assistance to enable them to perform, to the best of their ability, their humanitarian functions.” It also, most significantly, forbids the Occupying Power to “require that, in the performance of those functions, such personnel shall give priority to the treatment of any person except on medical grounds. They shall not be compelled to carry out tasks which are not compatible with their humanitarian mission.” This brings up the position of the individual physician who does not belong to the category of civilian medical personnel. He does not share their special protection, nor is he entitled to indicate his presence and special capacities by displaying a red cross or red crescent, whether on the premises where he performs his functions, on his car, or worn as an armlet. At an early stage of the preparatory work on the Protocol, this point was resolved once and for all, and a proposal of the ICRC to grant doctors and medical assistants the right, “with the consent of the relevant authorities,” to use for their identification (and, presumably, for protection at a somewhat higher level than as mere civilians) the red Staff of Aesculapius on a white background, was likewise unconditionally rejected.  What remains, besides the general protection an individual physician is entitled to like any other civilian, is a set of rules of the utmost importance in Article 16 on “general protection of medical duties”. This Article applies not just to the general practitioner and other individual physicians, but to any “person engaged in medical activities”, a term sufficiently wide to cover also such categories (to quote Bothe) as “nurses, laboratory assistants and midwives.” Even broader as well as from a different perspective is the interpretation given in the ICRC Commentary on the Protocol: it refers to “any person able to perform 38 39

See, by this author, op. cit. note 7, at p. 76; see also Bothe, Partsch, Solf, op. cit. note 37, p. 99. Ibid., p. 127.

1014 Chapter 46 medical activities for the benefit of the wounded” as well as “persons who may get involved in caring for the wounded who are the true beneficiaries of this provisions [sic].” Article 16(1) prohibits the punishment of any person “for carrying out medical activities compatible with medical ethics, regardless of the person benefiting therefrom.” Medical ethics, according to the ICRC, “refers to the moral duties incumbent upon the medical profession.” What are these duties? As explained by Bothe, the actual content of the concept of medical ethics “is determined by the national (legal or non-legal) rules [on medical practice] to which a person engaged in medical activities is subject. Although there is much common ground, internationally, on what constitute rules of medical ethics, the concept remains, for the time being, a national one.” In the context of the present meeting, the remaining two paragraphs of Article 16 are of sufficient importance to quote here in full. They read as follows: 2.

3.

Persons engaged in medical activities shall not be compelled to perform acts or to carry out work contrary to the rules of medical ethics or to other medical rules designed for the benefit of the wounded and sick or to the provisions of the Conventions or of this Protocol, or to refrain from performing acts or from carrying out work required by those rules and provisions. No person engaged in medical activities shall be compelled to give to anyone belonging either to an adverse Party, or to his own Party except as required by the law of the latter Party, any information concerning the wounded and sick who are, or who have been, under his care, if such information would, in his opinion, prove harmful to the patients concerned or to their families. Regulations for the compulsory notification of communicable diseases shall, however, be respected.

Commenting on these provisions, the ICRC notes that they were originally drafted exclusively for situations of occupation. As a result of a series of amendments they now apply both in occupied territory – between the occupying authorities and inhabitants engaged in medical activities as well as their own medical personnel – and in non-occupied territory. As regards the relations between the occupying authorities and their medical personnel, or between the persons engaged in medical activities in non-occupied territory and their own authorities, the law can doubtless impose a duty to give information “about the activities,

40 41 42

Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of I2 August 1949 (1987), pp. 198, 199. Ibid., p. 200. Bothe, Partsch, Solf, op. cit. note 37, p. 128.

International Humanitarian Law and Violation of Medical Neutrality 1015 connections, position or simply the existence of the wounded.” As Bothe notes, “The obligation is thus reduced to a kind of “rule of law” or “due process” guarantee.” However, he continues, “In the relationship between the person engaged in medical activities and the adverse Party, the prohibition applies with full force regardless of any national legislation to the contrary.” This national legislation, it may be noted, will often be the regulations promulgated by the Occupying Power. One last point should be noted about the paragraph on information. A person thus protected cannot be compelled to give information which “would, in his opinion, prove harmful to the patients concerned or to their families.” However, this does not imply a categorical duty of non-denunciation for this person. In effect, he may feel obliged to denounce a patient so as to prevent him or her from “pursuing activities which he considers to be dangerous for other human beings, just as, in peacetime, he may wish to prevent a criminal from continuing his criminal activities.” Article 17, on the role of civilian populations and aid societies, begins by admonishing the civilian population to “respect the wounded, sick and shipwrecked, even if they belong to the adverse Party, and [not to commit an] act of violence against them.” It is a deplorable fact, but no less a fact, that such a formal warning is necessary. The remainder of the Article deals with more positive aspects. Both the civilian population and “aid societies, such as national Red Cross (Red Crescent, Red Lion and Sun) Societies, shall be permitted, even on their own initiative, to collect and care for the wounded and sick, even in invaded or occupied areas.” Needless to say, this right of initiative cannot overrule all military considerations, which may make the presence of such charitable persons in areas of combat or otherwise enhanced risk undesirable. It also goes without saying that any risks incurred will be for the persons in question. From another angle, the Article lays down the principle that “No one shall be harmed, prosecuted, convicted or punished for such humanitarian acts.” The second paragraph reiterates the old rule that the Parties to the conflict may themselves “appeal to the civilian population and the aid societies” mentioned above to perform these humanitarian tasks and to “search for the dead and report their location”, and Parties doing so shall then “grant both protection and the necessary facilities to those who respond to this appeal.” Article 81, in Part V on execution of the Conventions and the Protocol, further consolidates the position of the Red Cross and, to a lesser extent, of other humanitarian organizations. Paragraph 1 obliges the Parties to the conflict to grant the ICRC “all facilities within their power so as to enable it to carry out 43 44 45

Commentary, supra note 40, p. 206. Bothe, Partsch, Solf, supra note 37, p. 129. Commentary, supra note 40, p. 205.

1016 Chapter 46 the humanitarian functions assigned to it by the Conventions and this Protocol in order to ensure protection and assistance to the victims of conflicts.” It also repeats the right of initiative of the Committee to “carry out any other humanitarian activities in favour of these victims, subject to the consent of the Parties to the conflict concerned.” Partsch notes a defect of the provision in that it only refers to the Parties to the conflict, thus leaving the relations of the Committee with other States unregulated. He also rightly criticizes the fact that as far as the paragraph goes, “during a conflict a High Contracting Party which is not a Party to the conflict is not obliged to grant to the ICRC the necessary facilities in order to carry out its functions on the territory of the respective State, if for instance a part of the population has been evacuated from the combat zone to this territory.” As we are only too well aware, this situation has arisen more than once in the recent past. Paragraph 2 requires a Party to the conflict to grant to its national Red Cross or Red Crescent organization “the facilities necessary for carrying out [its] humanitarian activities in favour of the victims of the conflict, in accordance with the provisions of the Conventions and this Protocol and the Fundamental Principles of the Red Cross as formulated by the International Conferences of the Red Cross.” The term “organization” instead of “society” serves to cover the (increasingly rare) case of countries that as yet have no internationally recognized Red Cross or Red Crescent society. In slightly weaker terms, paragraph 3 lays an obligation on all contracting States (as well as, somewhat redundantly, on the Parties to the conflict) to “facilitate in every possible way” the assistance which such organizations, as well as the League, may extend to the victims of armed conflicts, once again in accordance with the abovementioned rules and principles. It is an ironic result of the somewhat sloppy drafting history of Article 81 that it places national societies and the League in a better position than the ICRC when it comes to rendering assistance to the victims of armed conflict who have taken refuge in a country not involved in the conflict. As regards other impartial humanitarian organizations, paragraph 4 requires both contracting States and the Parties to the conflict, “as far as possible,” to “make facilities similar to those mentioned in paragraphs 2 and 3 available” to such organizations, provided they “are duly authorized by the respective Parties to the conflict and … perform their humanitarian activities in accordance with the provisions of the Conventions and this Protocol.” The main elements of this entire intricate system may be summarized as follows. Wounded and sick, whether military or civilian, must be respected in all circumstances and by any person who finds them on his path. Any person who undertakes to care for wounded or sick must protect them and treat them humanely, and he is himself protected against harm, prosecution, conviction or 46

Bothe, Partsch, Solf, supra note 37, p. 495.

International Humanitarian Law and Violation of Medical Neutrality 1017 punishment on account of his humanitarian act. Members of the medical profession and their assistants not belonging to the military medical services or a recognized civilian medical unit or organization (such as the national Red Cross or Red Crescent societies) enjoy general protection for carrying out medical activities compatible with medical ethics; they cannot be compelled to do or refrain from acts in violation of the rules governing their profession or designed for the benefit of the wounded and sick, and the adverse Party cannot compel them to disclose certain information if such disclosure would, in their opinion, prove harmful to the patients or their families. They are not, however, entitled to make use of the red cross or red crescent as a distinctive or protective emblem. The military medical services, the personnel of duly recognized civilian hospitals and their appliances, and the medical personnel of national Red Cross or Red Crescent societies are especially assigned the task of caring for and treating the wounded and sick. On account of this function they enjoy special protection under the Conventions of 1949 and Protocol I of 1977, and they are entitled to display the protective emblem, as far as the civilian personnel are concerned, whenever duly authorized by the competent authorities. 4

1949 and 1977: The Existing Law Relating to Internal Armed Conflicts

As compared to the preceding section on international armed conflicts, the present section can be extremely brief. It starts out with the introduction in the Geneva Conventions of 1949, of common Article 3 relating to armed conflicts not of an international character occurring in the territory of a contracting State. As far as relevant here, the Article requires each Party to the conflict in all circumstances to ensure the humane treatment of all persons taking no active part in the hostilities, including the wounded and sick. This must be done “without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.” This requirement of non-discrimination obviously does not prevent a Party to the conflict from pursuing its political objectives, such as, on the side of the incumbent government, the suppression of what it prefers to treat as an insurrection. To quote the ICRC Commentary: It is not a question here of legal treatment, but of humane treatment, of ensuring that every man taking no part in hostilities, or placed hors de combat, receives the minimum standard of treatment which the law of the country itself accords to the worst of criminals, even those awaiting execution, when it clothes and feeds them in its prisons and gives them medical treatment when they are sick.

47

Commentary to the First Convention, p. 56.

1018 Chapter 46 Whilst the Committee may be somewhat optimistic here in its appraisal of the standard of treatment in penitentiary legislations worldwide, it is doubtless correct in holding that humane treatment ought to represent a minimum standard everywhere. Even in the absence of relevant domestic legislation, all the parties to an internal armed conflict are bound to respect this standard unconditionally and irrespective of the victim’s political allegiance. In this connection it is worth noting that the closing paragraph of the Article expressly provides that the application of its provisions “shall not affect the legal status of the Parties to the conflict.” Referring specifically to the wounded and sick, Article 3(1)(2) provides that these “shall be collected and cared for.” The Article keeps silent, however, on all the matters ensuing from this principle that are dealt with at great length in the Conventions of Geneva as applicable to situations of international armed conflict. Article 3(2) preserves even for the situation of internal armed conflict, the right of initiative of the ICRC, stating that this (along with any “other impartial humanitarian body”) “may offer its services to the Parties to the conflict.” This obviously does not imply an obligation on the part of those Parties to accept such an offer. Yet, fortunately, they often do so. The one but last paragraph of the Article appeals to the parties to an internal armed conflict to “endeavour to bring into force, by means of special agreements, all or part of the other provisions” of the Conventions. This is an obvious means to go beyond the meagre obligations of Article 3 and, thus, improve the often tragic fate of the victims of such conflicts. Protocol II Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-international Armed Conflicts, of 8 June 1977, has brought significant improvements to the law, albeit only for those internal armed conflicts that meet the requirements (not to be discussed here) for application of the Protocol. Most relevant in the present context is Part III on the wounded, sick and shipwrecked. An introductory comment is that all of its provisions have been given a passive formulation. This is a consequence of the refusal of the majority in the Conference to refer to Parties to the conflict, for fear that any such reference might be interpreted as a recognition of insurgents as a Party and, with that, as an (even temporarily) existing entity on the international scene. The provisions in Article 3 on non-intervention were not sufficient to alleviate their fears in this regard.

48

Art. 3 reads: 1. Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.

International Humanitarian Law and Violation of Medical Neutrality 1019 Opening Part III, Article 7(1) states the meanwhile familiar principle that “All the wounded, sick and shipwrecked, whether or not they have taken part in the armed conflict, shall be respected and protected.” Paragraph 2 adds the requirement of humane treatment, specifying that they “shall receive, to the fullest extent possible and with the least possible delay, the medical care and attention required by their condition.” And it expresses the principle of non-discrimination in the strongest terms: “There shall be no distinction among them founded on any grounds other than medical ones.” With respect to the persons who provide the required treatment, Article 9 is remarkably brief. Rather than attempting to define categories of medical personnel authorized to do so, it lays down that “Medical and religious personnel shall be respected and protected and shall be granted all available help for the performance of their duties.” Then, taking up one of the points dealt with in Article 16 of Protocol I, it forbids compelling such personnel “to carry out tasks which are not compatible with their humanitarian mission.” Again, reiterating the principle expressed in Article 7, it states that “In the performance of their duties, medical personnel may not be required to give priority to any person except on medical grounds.” Again without definition, Article 11 provides that “Medical units and transports shall be respected and protected at all times and shall not be the object of attack.” Paragraph 2 adds the customary rules about cessation of protection in the event of use “to commit hostile acts, outside their humanitarian function.” Article 12 deals with the use of the distinctive emblem of the red cross or red crescent. This shall be displayed “under the direction of the competent authority concerned … by medical and religious personnel and medical units, and on medical transports. It shall be respected in all circumstances. It shall not be used improperly.” This again is remarkably succinct language, leaving many questions wide open. One thing stands out clearly: unauthorized use of the emblem is not acknowledged. The crux of the matter is, however, whether only one authority (and then obviously, an authority on the side of the incumbent government) can be regarded as competent to “direct” the use of the emblem throughout the country, or whether every party to the conflict can appoint its own authority and, thus, authorize and direct the use of the emblem by medical and religious personnel on its side. Much will depend on the actual state of affairs in the country at war. However, in principle, the latter solution appears to be the correct one. In prac-

49 50

2. Nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs. For an account of the negotiating history of Art. 12 see Commentary, supra note 40, p. 1438 et seq. In the same sense, loc. cit. note 49.

1020 Chapter 46 tice, branches of an existing Red Cross or Red Crescent society temporarily cut off by the hostilities from the society’s headquarters, or an improvised Red Cross or Red Crescent organization set up in a part of the territory over which the central government has lost control, will often be accepted on a factual basis by other Red Cross bodies, as a suitable forum to deal with in the provision of assistance. While the aforementioned Articles do not refer in so many words to Red Cross or Red Cross institutions, Article 18 does. Under the heading of relief, it provides that “Relief societies located in the territory of the [contracting State involved in the conflict], such as Red Cross (Red crescent, Red Lion or Sun) organizations, may offer their services for the performance of their traditional functions in relation to the victims of the armed conflict.” The use of the word “organizations” has similar implications as it was seen to have in Article 81 of Protocol I: this time, it points in particular to the possibility mentioned a moment ago, of separate branches or improvised organizations pursuing the activities of a national society. The point should be emphasized that Article 18 exclusively refers to relief societies located in the territory of the country at war. Strikingly, the right of the ICRC to offer its services, long recognized as a customary right, is not repeated in this Article or anywhere else in Protocol II. From an optimistic point of view, such repetition was not necessary as the right is already recognized in Article 3 common to the Conventions of 1949 which, as stated in Article 1(1) of Protocol II, is “developed and supplemented”, rather than substituted, by this Protocol. The last provision of Protocol II to be mentioned here is Article 10, on general protection of medical duties. In terms closely similar to those of Article 16 of Protocol I, it protects persons professionally engaged in medical activities against punishment for what they did in accordance with medical ethics, “regardless of the person benefiting therefrom.” They may not be compelled to perform acts contrary to “the rules of medical ethics or other rules designed for the benefit of the wounded and sick, or this Protocol”, or to refrain from acts required by those rules. Their “professional obligations … regarding information which they may acquire concerning the wounded and sick under their care shall, subject to national law, be respected.” And, once again subject to national law, no such person “may be penalized in any way for refusing or failing to give information concerning the wounded and sick who are, or who have been, under his care.” Like their colleagues in an international armed conflict, they are not entitled to make use of the red cross or red crescent emblem as a distinctive or protective sign.

51

For argument that even national societies of countries not involved in the conflict may find occasion to provide assistance in the country at war, see by this author, “Impartiality and Neutrality in Humanitarian Law and Practice”, in 29 IRRC (1989) p. 516.

International Humanitarian Law and Violation of Medical Neutrality 1021 One may perceive in these provisions, introduced in Article 10 of Protocol II as an almost literal copy of those in Article 16 of Protocol I, a heroic if not desperate attempt to reintroduce in the tragic situation of internal armed conflict, the principle of medical neutrality, perhaps not in all respects as originally conceived by Dunant, Basting and consorts but, taking into account the realities of contemporary armed conflicts, certainly in their spirit. It need hardly be stated that these rules are bound to pose the greatest difficulties in practice. To promote their observance in situations of actual internal armed conflict will require the continuous efforts of all those in a position to exert influence on those involved in such conflicts, at all levels and on all sides.

Chapter 47 Legal Aspects of “Medical Neutrality”*

1

Introduction: Risk and Protection

Among the large numbers of people who nowadays visit foreign countries, there are many who do this in order to offer some form of aid in the country they are visiting: development aid workers, academics who are part of an exchange programme, those accompanying food transports or other emergency supplies, aid workers in the area of health care, et cetera. They can all, in the course of these activities, become involved in situations which entail more or less serious risks for their freedom or personal dignity, health or physical or mental wellbeing or even their life. The risks occur primarily in areas where human rights are not observed very well or where some other form of insecurity prevails; the latter is most strongly the case in areas which are afflicted by war, whether in the form of international or (more often) internal armed conflict. It goes without saying that such persons and the organizations which support them attempt to secure some form of effective protection in situations entailing such high risk; preferably of course real immunity, but even then of a kind that allows them to maintain their freedom of action as much as possible. Public international law offers various forms of protection for aliens. A wellknown position of immunity, and one which is often regarded with envy, is that of the diplomat; but that is reserved for them and for those persons who are placed on the same footing. What is more generally applicable is so-called “diplomatic protection”, which a state may offer to every subject who becomes involved in difficulties in a foreign country (by making such a subject’s complaint against another state its own). Human rights treaties and the instruments of enforcement they contain may also often offer a certain degree of legal protection. But in practice, when push comes to shove, it appears that none of these generally applicable means offer fast and effective protection; and if effective at all, this is often only in the long term. The greater the danger and thus the more acute the need for protection, the smaller the chance appears to be that it may be achieved by these means.

*

Originally presented in Dutch at a symposium on medical neutrality held at Nijmegen on 28 March 1992.

1024 Chapter 47 For some categories of medical aid workers a high level of protection was already achieved a long time ago: it has existed since the first Geneva Convention of 1864 for military medical personnel acting in time of war. What this amounts to is legal protection combined with de facto protection in the form of the authorized use of the red cross and the red crescent as a “protective emblem”. This does not, of course, ensure immunity on the battlefield: bullets are blind. The “protective emblem” was introduced to safeguard medical aid to the wounded and sick (and the shipwrecked) in situations of armed conflict. International humanitarian law (IHL) attaches strict conditions to the recognition of institutions as “medical aid workers”. (Medical and other) aid workers who cannot or do not wish to meet these requirements, cannot by law claim the protection which is accorded recognized medical aid workers. But it is undeniable that they too may have a justified interest in ensuring recognition of, and deriving a degree of protection from, their special position. One way to achieve this goal may be by resembling as closely as possible recognized medical aid organizations. In this connection the tendency may be noted to use the term “medical neutrality” as a kind of general cover and to expose all sorts of untoward behaviour as violations of this broad concept of ‘medical neutrality’. Both “medical” and “neutrality” are existing words which may have a variety of meanings. The combination “medical neutrality”, not an existing legal concept, is therefore susceptible to all sorts of interpretations, even word games (such as the remarkable manoeuvring with the terms “active” and “passive” neutrality – a point I shall return to). But the term “medical” does in any case imply a certain restriction. Take the professor teaching criminal law at a foreign university who is taken hostage, or the aid worker instructing villagers how to work with a new water pump and who is severely wounded during a raid on the village: they may both be victims of serious infringements of their fundamental rights, but neither of them can be said to suffer an infringement of something which could be referred to as “medical neutrality”. The term cannot, in other words, serve as an umbrella protecting every person involved in foreign aid. Such attempts at terminological blurring are doomed to result in confusion and, worse, may even undermine the actually existing protection of what can without ambiguity be termed “the medical sector”. This symposium deals, according to its title, with “medical” issues. I shall not attempt to offer an overall explanation for this term. Suffice it to say that I understand it to refer to a number of principles and fundamental questions concerning the status and (degree of ) protection of persons and institutions which offer medical aid to the wounded and sick among the population, including the armed forces, of a country where human rights are threatened or that is engaged in an (international or internal) armed conflict. Hereafter, I will discuss a number of these principles and questions from primarily a legal point of view, and, to begin with, the term “neutrality”.

Legal Aspects of “Medical Neutrality” 1025 2 “Medical Neutrality”: A Duty, Not a Right. The term neutrality is used in all kind of circumstances, by states, international organizations and individuals. The core meaning of the concept is that an institution or person keeps distance from a particular situation, takes no part in a fight and indeed refrains from siding with either one of the parties, thus respecting the notion of impartiality. Applied to individual medical actions the term implies that the aid worker does not make a distinction between the persons coming up for treatment: not on the basis of colour, religion or gender, nationality or political persuasion; nor between friend and foe in the case of a political or armed conflict in which he himself belongs to one of the parties or carries out his work on the side of such party (given that, after all, he can only be in one place at once). For organizations venturing onto the path of medical aid the term neutrality carries the same meaning of impartiality. One factual difference is that they may be able to carry out their functions on more than one side at once: this depends on a variety of factors, including available means and accessibility of the area. All relevant circumstances permitting, the organization is indeed obliged to extend its aid to both sides: not only does this ensure a more complete realization of the basic notion of (medical) neutrality, but consciously choosing for one side on other than medical or humanitarian grounds constitutes a flagrant violation of this notion. To avoid all misunderstanding, I should add that it may also be entirely correct for an organization to restrict medical aid to only one side of a conflict, provided that this choice is not based on political preference or any other prohibited grounds for discrimination. Nor does it make any difference whether or not permission to access the area has been requested and received: permission and neutrality have no connection to each other. This brings me to the distinction, mentioned a moment ago and which is nowadays often bandied about, between so-called “active” and “passive” neutrality. As explained by its adherents, the most important feature of this distinction appears to be that “actively neutral” aid workers, in order to realize the right to humanitarian aid of suffering human beings, claim a right to enter the territory of a state with or without permission, or even in the face of a downright prohibition to do so. Conversely, aid workers are said to be “passively neutral” when their activities remain dependant on having received such permission. Applied to present reality, Médecins sans Frontières may be seen to practice the “active” form, and the International Red Cross as well as certain UN aid bodies, the “passive” form which (in a Dutch newspaper account of 25 January 1992) is said to mean that these organizations “consciously keep away from areas in which insurgents are in power, even if it is precisely in those areas that people often need help.” What is meant by “the” International Red Cross: the delegates of the ICRC? Or those of the International Federation of the Red Cross and Red Crescent Societies? Persons dispatched by such national societies? Or the many volun-

1026 Chapter 47 teers of the national society in the country itself? In any event, “the” International Red Cross has ventured countless times, in the more than 125 years of its existence and development, into areas where insurgents were in power or where the security of aid workers was under threaten in some other way; all too often with disastrous consequences for those involved. It will continue to do this, obviously, while avoiding unnecessary risk. Its activities are not restricted to medical aid: especially in situations of armed conflict it focuses as well on protection of prisoners of war and other detained persons, on protection of civilians against the risks arising from hostilities, on dissemination of knowledge of IHL, etc. All the components of the worldwide Red Cross and Red Crescent are involved in this work, each acting within the constraints of its possibilities and honouring the fundamental principles, framed in 1965 in their current form, of which the principles of “humanity”, “impartiality” and “neutrality” are the foremost. Humanity is an active principle: it implies the prevention and amelioration of human suffering wherever it is found. Neutrality and impartiality carry the meaning for the Red Cross which I have already indicated. “Active” and “passive” neutrality: I regret to say that these are nothing more than a cleverly concocted and employed advertising slogan. Recently I came across another such nonsensical slogan. In the first issue of the International Newsletter of Médecins sans Frontières, Dr. Françoise Saulnier, listed as an “international lawyer”, argues that MSF regards itself as fulfilling the role of a substitute of the Protective Powers, as provided in the Geneva Conventions of 1949. A glance at the Conventions makes clear that (1) the system does not apply to (medical or other) aid, but provides for monitoring compliance with the Conventions, and (2) it is exclusively applicable in situations of international armed conflict, not in internal armed conflict. In addition, (3) it is completely dependant on the agreement of both parties involved, (4) the appointment of delegates of (the substitute of ) the Protective Powers requires the consent of the party where they will fulfil their task, these persons are (5) under no circumstances allowed to exceed the limits of their mandate and they must (6) “take particular care to take into account the urgent security demands of the state in which they carry out their task.” Are we to supposed to believe that this is how MSF interprets its role? This has not become apparent so far. Unfortunately, we have here once again a specimen of what amounts to nothing more than cheap sloganing. Let us return to our actual subject. The requirements regarding “medical neutrality” in situations of armed conflict in particular have, for some time now, been established in the body of IHL developed to cover such situations. They are found primarily in the Geneva Conventions of 12 August 1949 and the Additional Protocols of 8 June 1977. These treaties provide, first, that the wounded and sick must be respected and protected; they must be tended according to the means available and at all times be treated with humanity. The duty to observe these fundamental rules rests in the first place on each of the parties to an international

Legal Aspects of “Medical Neutrality” 1027 or internal armed conflict, and this with respect to all the wounded and sick who are in their power. Each “medical aid worker” is also personally bound to observe these rules. Further down, it will be examined who falls within the scope of this term – and who does not. The Conventions establish an absolute prohibition against discrimination in the observation of the above fundamental rules. The simplest and most generally accepted formulation of the prohibition may be found in the two Protocols of 1977 (i.e., Protocol I for international armed conflict, and Protocol II for internal armed conflict): no distinction may be made between wounded and sick other than on medical grounds. The Conventions of 1949 are somewhat more complicated on this point. In the case of international armed conflict they explicitly prohibit any adverse distinction on the grounds of gender, race, nationality, religion, political opinion or any other similar criteria. With respect to non-international armed conflict they note the same criteria with the exception of “political opinion.” Precisely in the light of the political problems which often characterize an internal armed conflict, this apparently small textual difference represents a significant difference in the operation of the prohibition against discrimination. As stated above, the Protocols remove the difference. I am noting it nevertheless because a good many states are not parties to Protocol II and because the special nature of this form of armed conflict is also apparent elsewhere in this Protocol. The prohibition against discrimination on other than medical grounds approximates the closest to what could be called “neutrality” in the care of the wounded and sick. Even then, a better term in this case is impartiality. 3

Categories of Aid Workers: Their Duties and the Extent to Which They Are Protected

The 1949 Conventions and the 1977 Protocols provide detailed rules for the position and degree of protection of various categories of “medical aid workers”. These treaties are, as they explicitly state, applicable in particular to situations of armed conflict, but the rules and principles relating to medical aid which they formulate are of enough interest to be regarded in a wider context. The conventions distinguish between three categories: personnel attached to “medical units”, other professional medical aid workers, and other persons who are incidentally involved in caring for the wounded or sick. 3.1

Personnel Attached to “Medical Units”

Protocol I defines “medical units” as establishments and other units, organized for medical purposes, namely the search for, collection, transportation, diagnosis or treatment – including first-aid treatment – of the wounded and sick, and for

1028 Chapter 47 making diagnoses. The term also includes centres for the prevention of diseases. Such units may be military or civilian, fixed or mobile, permanent or temporary. Protocol II employs the terms “medical units” and “medical personnel” without giving a definition of either. It is commonly assumed that terms not defined in Protocol II have the same meaning as in Protocol I. We shall in the following therefore use the meanings defined in Protocol I. Also with respect to the status and protection of medical units and medical personnel the rules for international armed conflict are more extensive and precise than those for the internal variant. I shall discuss below the rules which are applicable to international armed conflict. Whoever wishes to offer medical aid in another country in the case of an internal armed conflict does well to take into account the possibility that the rules applicable to international armed conflicts will nevertheless be applied. 3.1.1

Military Medical Units and Their Personnel

The position of military medical units and their personnel is regulated primarily in the First Geneva Convention of 1949. Such units are organized to offer medical aid to the wounded and sick among the armed forces. The personnel attached to them belonging to the armed forces “shall be respected and protected in all circumstances” (in the case of hospital orderlies or auxiliary stretcher-bearers only “if they are carrying out these duties at the time when they come into contact with the enemy or fall into his hands”). The protection of these persons means in the first place that they may not be deliberately attacked. If they fall into the hands of the opponent, they may not be detained, except if this is necessary for the medical care of prisoners of war. Nor may they be punished for activities carried out prior to their detention within the framework of their function, including the obvious fact that they were operative on one side only (provided always that in doing so they have refrained from discrimination between friend and foe). In order to ensure that they may be recognised they must wear one of the emblems established and recognised for this purpose, that is the red cross or red crescent. They must also be carrying an identity card which makes their status clear. With such military medical personnel “are placed on the same footing the staff of National Red Cross Societies and that of other Voluntary Aid Societies, duly recognized and authorized by their Governments, who may be employed on the same duties as the personnel named in [Article 24 of Convention I of 1949], provided that the staff of such societies are subject to military laws and regulations.” For modern Red Cross societies this provision has lost most of its importance. Personnel of the Netherlands Red Cross, which was founded 125 years ago as a society to offer aid to wounded soldiers on the battlefield, ceased carrying out such activities a long time ago. This does not mean to say that it could not

Legal Aspects of “Medical Neutrality” 1029 be called upon to carry out this work during a situation of armed conflict, but that would then be in a totally different context. Also in countries which recently experienced war in their territory, the staff of the national Red Cross and Red Crescent societies often operated under its own leadership rather than as a quasimilitarised section of the military medical service (that is, if such a service existed at all in the country concerned). 3.1.2

Civilian Medical Units and Their Staff

Of the civilian medical units present in a country which meet the description formulated in 3.1, only a portion enjoy protection. This includes, to start off with, the units which belong to a party to the conflict (a state hospital), or are acknowledged and authorised by the competent authorities of the party (in the Netherlands this means that they must be recognised by the Department of Health and authorised by the Department of Defence). Also included are: medical units which are put at the disposal of a party to the conflict for humanitarian reasons by a state which is not a party to the conflict, a recognized and authorised aid society of such a state, or an impartial international humanitarian organisation. This formulation presupposes that in each of these cases the permission of the receiving state has been acquired. The societies must be recognized as such by their own state; these are the Red Cross and Red Crescent societies and a few others, such as the Knights of St. John and the Order of Malta. An “impartial international humanitarian organisation” means in practice (the delegates of ) the International Committee of the Red Cross. A civilian medical unit which falls within one of these categories “may in no circumstances be attacked, but shall at all times be respected and protected.” The civilian medical staff attached to them “must be respected and protected”, also when they are doing their work in the context of civil defence. For them too, the rule applies that the opponent may not punish them for activities performed within the context of their function, including for the fact that they operated on one side only (but, again, without discrimination on other than medical grounds). And as civilians they remain immune from being taken as prisoners of war. In order to ensure that they are recognised both the units themselves and those attached to them must be equipped with an emblem (the red cross or red crescent). Use of such an emblem can only offer protection against the risks of war if a unit or its staff are not in the immediate vicinity of military targets and also do not “go in search of danger”. Applied to the Netherlands Red Cross all this means that medical personnel which this society dispatches to a theatre of war outside its own country, enjoys protection as (part of ) a “civil medical unit” in the sense indicated above if it has been sent as a unit (ambulance, field hospital) for medical aid and has been allowed entry or (which often happens) has been included among the delegates of the ICRC.

1030 Chapter 47 3.2

Other Professional Medical Aid Workers

The above makes clear that according to applicable IHL by no means everyone who offers medical aid is eligible for special protection, even if he or she is a professional aid worker. Not eligible for special protection are, for instance, the general practitioner and the chemist, health care institutions not recognised or authorised by the qualified authorities, as well as the staff of a non-recognised society for medical aid working in an area of conflict outside their own country. Of course, such not especially protected persons are far from outlaws. First, as civilians, they are covered by the rules relating to general protection against the effects of hostilities. However, this gives them not more than limited protection: especially as long as civilians find themselves in a danger zone or in the vicinity of military objectives, they are exposed to the risks inherent in such situations. The protection “as a civilian” is also suspended if and as long as such persons “participate directly in the hostilities”. This concept is not defined further and is subject to diverse interpretations. The possibility cannot be altogether excluded that one party to the conflict assumes that, for instance, the activities of a medical team that appears to be acting without special protection on the side of the opposing party constitutes such direct participation and as a result deliberately attacks the team. Such an interpretation may, in the light of better insight, be unacceptable, but the damage will have been done before anyone can persuade the party of the incorrectness of its view. In addition to the limited general protection which they share with other civilians, professional medical aid workers enjoy a more specific and totally different type of protection, in the 1977 Protocols designated as “general protection of medical duties”. Both Protocols provide that no-one may be punished for performing medical activities which are in accordance with medical ethics, irrespective of whomever these activities benefit (in other words: irrespective of whether those involved belonged to the – regular or irregular – armed forces of the opponent). The persons who perform medical activities also cannot be compelled to perform acts which are contrary to the rules of medical ethics, or to stop performing acts which are in accordance with them. As regards the information which a medical aid worker acquires as a result of his/her function, Protocol I provides that he or she may not be compelled to give “any information concerning the wounded and sick who are, or who have been, under his care, if such information would, in his opinion, prove harmful to the patients concerned or to their families.” An exception is made for information to the own side if required by the legislature of that side, and also for the compulsory reporting of contagious diseases. Protocol II provides in the case of an internal armed conflict, in considerably weaker terms, that the ‘professional obligations’ of such a person with respect to information which he may acquire concerning the wounded or sick under his care, must be respected – “subject to national law”. The same restriction applies

Legal Aspects of “Medical Neutrality” 1031 with respect to the prohibition on sanctions, of whatever kind, against a medical aid worker, “for refusing or failing to give information concerning the wounded and sick who are, or who have been, under his care.” 3.3

Persons Who Are Incidentally Involved with the Care of the Wounded or Sick

Every civilian can, in the case of an armed conflict, find him/herself confronted with the need to care for sick or wounded persons. The original Geneva Convention of 1864 already provided for this by determining that civilians who helped wounded combatants should be respected and remain free. The 1977 Protocols also contain provisions about this. Protocol I for instance states that the civilian population “even in invaded or occupied areas” may collect and care for the wounded and sick; no-one may for such humanitarian acts be “harmed, prosecuted, convicted or punished”. A party to the conflict may even appeal to the civilian population to perform these kinds of acts. It is in that case obliged to grant both protection and the necessary facilities to those who respond to this appeal. Should the opposing party (re)gain the territory then it must, in its turn, as long as is necessary, continue to offer the same protection and facilities. Protocol II provides, again much more briefly, that the civilian population may offer “even on its own initiative” to collect and care for the wounded and sick. Both Protocols refer in this regard especially to medical aid societies, such as the Red Cross and Red Crescent organisations. Protocol II provides in particular, this time in very broad terms, that relief societies “located in the territory of the High Contracting Party” may “offer their services for the performance of their traditional functions in relation to the victims of the armed conflict”. 4 The Law in Force and Justified Demands for Its Improvement The above overview shows that the protection of the function that may be widely termed as the care of wounded and sick victims of conflict situations varies from the minimal (every civilian) to the very extensive (the officially recognised medical formation); and that the requirements for the most extensive protection are strict. Many professional medical aid workers remain denied this protection, including the use of the red cross or red crescent as protective emblem. This applies to the not-recognised local health workers in countries where only highly rudimentary organised health provisions exist as much as to the doctors and other medical aid workers who are dispatched to conflict areas by non-recognised societies. The latter’s problems increase if they enter such an area without official permission. As was noted at the beginning, the desire of such medical aid workers who are dispatched to areas of conflict to fall under some form of effective protection can hardly be regarded as unreasonable. At issue here is not their protection (already provided in the Protocols of 1977) against prosecution and punishment

1032 Chapter 47 for acts performed or refusal to give information, but their legitimate desire to be exempt from and protected against armed attacks and other unjustified infringements of their freedom to act professionally and their personal integrity, all of this on a par with recognised, military or civilian “medical formations”. Can this wish be realised, and if so, how? It seems that this could be done, obviously, by the creation of new treaty law; but also, weaker and more provisionally, by means of resolutions of appropriate international fora. In either case, such a further development of the law should remain in close contact with the existing sophisticated rules of IHL in this area as well as with applicable human rights. Also: development should preferably be on a worldwide scale; if this is not, or not yet possible, then on a regional scale or even ad hoc. My final point concerns the use of the red cross or any other recognized protective emblems. Any new legislative development in this area should uphold the principles that the use such protective emblems must remain subject to restrictions (unrestricted use leads to the loss of protection) and must be subject to supervision: unchecked use will entail the loss of recognition and, with that, of protection.

Chapter 48 Freedom of Navigation and Neutrality in the Gulf War, 1980 - 1988: The Dutch and Belgian Mine-hunting Activities*

1

Introduction: The Facts

On the 20th of November, 1987, in the eighth year of the armed conflict between Iran and Iraq, two Belgian and two Dutch mine-hunters, accompanied by a Belgian supply ship and escorted by a British frigate, entered the Persian Gulf. Their task was to contribute to the efforts to protect international navigation from the effects of the hostilities in the area. Both in Belgium and The Netherlands, the decision to send the ships on this expedition far from their home waters had only been taken in the first half of September 1987, after long discussions on the domestic level as well as in the course of bilateral and multilateral negotiations. The activity was to last just over a year: by the end of 1899 the last remaining Dutch warship returned home, the other one and the Belgian vessels having returned earlier. The ultimate decisions concerning this combined out-of-area operation had been prompted by ever more pressing American appeals. Initially, these appeals on the part of a State which to the taste of many had become rather too deeply entangled in the situation in the Gulf had not generated particularly great enthusiasm at the political levels in Belgium and The Netherlands. A more positive reaction came only when the need to respond with a sign of good will could no longer be ignored. A first official indication of an impending change in attitude came when, after a meeting of the NATO Defence Planning Committee on 26 May 1987, the Dutch Minister of Defence stated that, although he certainly had not made any promises of the sort, he did not in principle reject all possibility of sending Dutch warships to the Gulf. Once this first step taken, thinking about a possible participation evolved rapidly. * 1

Published earlier in A. de Guttry & N. Ronzitti (eds.), The Iran-Iraq War (1980-1988) and the Law of Naval Warfare (1993) pp. 475-494. See States General, Second Chamber, Parliamentary Year 1986-1987, Annex, p. 1661: written reply of the Minister of Defence, received on 3 July 1987, to a question dated 29 May concerning the readiness of the Netherlands to dispatch warships to the Gulf. The history of the Dutch involvement and, in general, of the repercussions of the Gulf War on Dutch interests, has been described in great detail by H.J. Neuman,

1034 Chapter 48 Even so, for both countries, and perhaps for The Netherlands in particular, the idea appeared palatable only in a multilateral setting, preferably even under the aegis of the United Nations. As this was bound to remain an illusion, co-operation in the framework of the Western European Union (the WEU) was perceived as a second best solution. This resulted in a series of consultations among the member States of this organization. A meeting of representatives, held in The Hague on 20 August 1987, succeeded in agreeing on a statement to the effect that European vital interests required that the freedom of navigation in the Gulf be assured at all times. On that occasion, the Dutch participants officially informed their colleagues that The Netherlands “was in principle prepared to take part in neutralising mines in the Gulf in conjunction with other European countries.” It was soon apparent however that a joint action of the WEU members was out of the question. France had engaged in unilateral action, Italy was determined to confine its contribution to the protection of Italian ships, the Federal Republic of Germany claimed constitutional obstacles to any active participation in the Gulf operations, Luxemburg could not actively participate for want of a navy, and the United Kingdom was already involved in activities that it was not prepared to subordinate to a joint WEU operation. The only remaining possibility was a joint Belgian-Dutch operation. This option was carefully examined from all angles in a series of contacts between the two countries on the political, operational and administrative levels. The Dutch Government was the first to announce its decision. By letter of 7 September 1987, it informed Parliament that it had decided to dispatch two mine-hunters to the Gulf area; that the vessels would be ready to depart in some ten days’ time, and that they could arrive in the area some four to five weeks after departure. It added that it expected a decision in Belgium very shortly. In effect, this came one week later: on the 14th of September, the Belgian Government made known its decision to dispatch two mine-hunters and one command and support vessel to the Persian Gulf. For this adventurous journey into a noted danger area, the two Governments had thus chosen vessels with basically no more than a mine-hunting capacity and whose capacities for self-defence were strictly limited. In view of this fact, they had sought and obtained from the United Kingdom a promise of sorts that the

2

3 4

Director of the Netherlands Institute for International Relations, in three articles in Internationale Spectator, Vol. 23 (1988), pp. 166., 486, 687. Letter dated 7 Sept. 1987 of the Ministers for Foreign Affairs and of Defence to the Second Chamber of the States General; Sec. Ch. 86-87, 20075 No. 1; partial translation into English in 19 NYIL (1988), p. 359. Ibid. See Chamber of Representatives, joint public meeting of the Commissions of external relations and national defence, 17 Sept. 1987; Parliamentary Annals, Ordinary Sessions 1986-1987, No. G. 80.

Freedom of Navigation and Neutrality in the Gulf War, 1980-1988 1035 latter country would endeavour to provide the necessary protection by the more heavily armed warships it maintained in the area (the Armilla patrol). Not surprisingly, all of this gave rise to extensive public debate in both countries. It is not the purpose of this paper to go into all the details thereof, any more than into the facts of the operation (specificities of the vessels involved, their equipment, logistical measures, mines found and destroyed, etc.). The main focus will rather be on some aspects of international legal interest of this joint operation: notably, freedom of navigation and, in that connection, European vital interests and neutrality. 2

Freedom of Navigation

“The high seas are open to all States, whether coastal or landlocked. Freedom of the high seas … comprises, inter alia, (a) freedom of navigation …” Thus Article 87(1) of the 1982 UN Convention on the Law of the Sea. By virtue of Articles 58 and 86, freedom of navigation applies to “all parts of the sea that are not included … in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.” It applies, consequently, to those parts of the Persian Gulf that are not included in the territorial sea or internal waters of any one of the coastal States surrounding the Gulf. While this may be incontrovertible as a general statement of the law, it is equally evident that in a war-infested area, international navigation is exposed to risks of an entirely different order than the one run in normal conditions. This applies to any sea area that is the scene of naval operations (including air-sea operations). The question to what extent States and ships under their flags, not involved in an armed conflict, should accept these additional risks as an unavoidable consequence of the conflict, is a matter for the law to determine. In this respect, the relevant body of law (i.e., the law of war and neutrality) does not distinguish between regions according to the density or economic importance of the traffic going on in the regions. Obviously, however, even though the law may not so distinguish, States not involved in the conflict do, especially when it is a matter of enforcing the law as against acts of war that cause damage to ships sailing under their flags; the greater the importance of traffic in a given area, the more will such States be concerned to see the damage to international navigation minimized. They may give expression to their concern verbally, by diplomatic notes transmitted to the parties to the conflict or by the passing of resolutions in international forums that call upon the parties to respect their interests. The international community did this in the case of the armed conflict between Iran and Iraq: on numerous occasions, such messages were either openly or discreetly brought to the attention of the authorities responsible for the conduct of the war in the countries concerned. The one and only instance to be mentioned here is the statement made by the member States of the WEU on 20 August 1987 “to the

1036 Chapter 48 effect that the vital interests of Europe require that the freedom of navigation in the Gulf be assured at all times.” The statement provides a clear demonstration that States’ readiness to take a firm stand in such matters increases with the intensity of their interests involved. The tremendous economic importance of the Gulf area for the European States, as compared, for instance, with those parts of the oceans well beyond any frequently used shipping lanes, is quite obvious and may be simply taken for granted here. It is, and was at the time of the armed conflict between Iran and Iraq, sufficiently great to warrant such a verbal message. Two points need to be made here. The first is that the message, as indeed all comparable resolutions and statements issued at the time, assumed without much ado that under the law of armed conflict, the parties to the conflict were not entitled to engage in the type of military operation against commercial shipping they had, each in their own ways, chosen to undertake even in international waters well beyond any declared “free-fire zone”. The treaty law on the subject dates back for the most part to the Second Hague Peace Conference of 1907, and subsequent belligerent practice, especially during the First and Second World Wars, had done little to improve the legal situation. It is only quite recently that questions of naval targeting in relation to “innocent” merchant shipping have been brought up for discussion on an expert level. Obviously, the stance taken by the international community in respect of events in the Gulf War will have to be taken into serious consideration in these discussions. The other point concerns one particularly interesting feature of the message: it is the use of the phrase “vital interests of Europe”. In traditional international law, the claim that the “vital interests” of a State were at stake often constituted an important element in arguments about the legitimacy of recourse to force. With the advent of the Charter of the United Nations the argument gradually disappeared from the manuals of international law, only to be revived accordingly as States (and some international lawyers) became dissatisfied with the results obtained by that organization. Especially in the United States, the tendency to reintroduce “vital interests” as a ground legitimizing recourse to force is quite strong at times. The deliberate use of the term in the WEU statement, although definitely not a forewarning of any plans for an offensive deployment of force against either party to the conflict, may perhaps be construed as an indication that the patience of the member States with the situation in the Gulf was wearing thin. Indeed, in the eyes of several (European and other) States, the interests of free navigation in and around the Gulf were of such magnitude that they merited being defended not merely verbally but on the spot, by force if necessary. In view 5 6

See op. cit. note 1. At the outset of the debate in the Belgian Parliament about a decision to dispatch three warships to the Gulf, the first speaker, Mr Tobback, expressed doubt that the

Freedom of Navigation and Neutrality in the Gulf War, 1980-1988 1037 of the variety of military operations carried out by the parties to the conflict, this stance implied that the actions in defence had to vary accordingly. These actions were each apt to encounter their own specific legal problems that could be all the more difficult to solve because, as mentioned before, the law of war and neutrality is perhaps best known for its old age and ensuing lack of clarity. Fortunately, the combined Belgian-Dutch mine-hunting activities involved few, if any, such legal complications. The ships clearly carried out their operations in international waters and well beyond any “defence zone”, “exclusion zone” or similar zone claimed by either party to the conflict. Furthermore, their actions were specifically directed against the risks posed by the presence of mines in these international waters. While it is readily agreed that the treaty law on the subject, codified as long ago as 1907 by the Second Hague Peace Conference, is manifestly inadequate to cope with all aspects of the use of presently existing sea mines and therefore leaves important areas of uncertainty, this much is beyond doubt that belligerents cannot claim an unlimited right to use such mines on the high seas, let alone use them indiscriminately against all shipping. Therefore, the right of States not participating in the conflict to undertake mine-hunting activities in international waters for the protection of international commercial navigation against the risks resulting from such use does not, on the face of it, appear open to question. This was precisely what happened, however, when on various occasions Iran confronted the Dutch authorities with the reproach that the planned activities constituted an unfriendly act and were incompatible with the professed neutrality of the Netherlands in the conflict. In a similar vein, some members of Parliament in this country and in Belgium raised questions about the effects on neutrality of the contemplated activities of the mine-hunters in the Gulf area. It is now time, therefore, to turn our attention to this important question of neutrality.

7

8

9 10

Belgian interests in the Gulf could be indicated as “vital”. He argued that even if, as the Prime Minister had stated, 17 of the oil import was at stake, this could easily be replaced from other sources; Parliamentary Records, Chamber of Representatives, 198687, public meeting of the Commissions for International Relations and for Defence, 17 Sept. 1987, p. 2. The treaty concerned is the Hague Convention VIII Relative to the Laying of Automatic Submarine Contact Mines of 18 Oct. 1907; for text see, e.g., D. Schindler & J. Toman, The Laws of Armed Conflicts, 3rd ed. (1988) p. 803; A. Roberts & R. Guelff, Documents on the Laws of War (1982) p. 85. Both the text and a Commentary by H. S. Levie are included in N. Ronzitti (ed.), The Law of Naval Warfare (1988) p. 129. In the debate in the Belgian Chamber of Representatives, Prof. E. David of the Université Libre de Bruxelles (the francophone Free University of Brussels) was quoted to the same effect; op. cit. note 6, p. 6. See Neuman, op. cit. note 1, p. 694. In the Netherlands: Mr Ter Beek (in a radio programme shortly after the Government had announced its decision; quoted by Neuman, op. cit. note 1, p. 694); Mrs Beckers-

1038 Chapter 48 3

Neutrality

It may be useful to start out with some general remarks about the concept of neutrality, taken here as one half of the traditional “law of war and neutrality”. As such, it operates as a device to restrict the impact of an armed conflict, simply by limiting the number of participants. (The term can also have different connotations, as in “the permanent neutrality of Switzerland”, or as a neutral stance in respect of a given political or ideological dispute, or again, as in the “principle of neutrality” of the Red Cross). In the context of the law of armed conflict, and taken in its broadest sense, the statement that a State is neutral with respect to a given armed conflict merely signifies that it is not a “party to the conflict”. This fact of non-participation, or non-belligerency, implies for the neutral State the continuation of its normal, peace-time relations, both with other non-participating States and, in principle, with the parties to the conflict (although, as mentioned before, it may sometimes have to suffer the impact of the armed conflict on these relations and on its rights and duties and those of its nationals). As a non-participant, the main duty of a neutral State is a simple one: to avoid getting directly involved in the armed conflict. As such, it is obviously precluded from performing acts of war against any party to the conflict. Equally obviously, this is without prejudice to its rights of self-defence and protection of its legitimate interests and those of its nationals under general international law. Besides being under this duty of non-participation in the armed conflict, the neutral State is also required to maintain an attitude of impartiality in relation to the parties to the conflict. This requirement of neutrality in its stricter sense implies a general obligation for the neutral State to treat the belligerent parties on a footing of strict equality. Most of the rules of neutrality law, as codified in 1907 at the Second Hague Peace Conference, deal in particular with this aspect of neutrality. Application of these rules has always been dependent on the circumstances of the situation, though. To give an extreme example: a State which does not export arms or other military equipment to other countries obviously does not run the risk of being accused by one party to the conflict of favouring the other by providing it with more or better weapons than those received by the complainant itself. Generally speaking, factors such as geographical distance and intensity of trade relations have often determined for non-participating States the need to also positively demonstrate their impartiality. Doubts about the viability of the concept of neutrality in the context of present-day international relations arose in the first place as a consequence of events connected with the Second World War. It is obvious that in the course of de Bruijn (Second Chamber, plenary session of 10 Sept. 1987, Second Chamber 198787, Records, 101-5237) and Mr Van Dis (ibid., 101-5244). In Belgium: Mr Pepermans (op. cit. note 6, p. 13).

Freedom of Navigation and Neutrality in the Gulf War, 1980-1988 1039 the armed conflict a number of States, although technically non-parties to the conflict or perhaps even declared neutrals, disregarded the traditional requirements of impartiality to a considerable degree. It may be argued however that this practice has not of itself affected the institution of neutrality. The duties of impartiality were owed to the disadvantaged belligerent party, and it was up to that party to decide how to react to any less-than-completely impartial behaviour: if it lacked the means to make the neutral State comply strictly with its obligations, it could always choose to treat it as a party to the conflict. As long as it did not take this step, it evidently preferred to continue regarding it as a non-party to the armed conflict, or in other words, as a neutral State. Further difficulties came to threaten the concept of neutrality with the adoption and entry into force of the UN Charter, with its system of collective security. According to the ideas embodied in the Charter, the outbreak of an armed conflict between two or more States would of necessity imply that one party to the conflict was guilty of a breach of the peace, and the entire organized international community would then turn against the culprit to restore the peace. Neutrality, even in its broad sense of mere non-participation in the conflict, appeared difficult to reconcile with these ideas. In practice, however, a decision that one or other side was guilty of a breach of the peace was seldom taken by the Security Council, as the competent UN organ in these matters. Accordingly, neutrality has continued to operate in the international community as a device to limit armed conflicts at least as far as participating States are concerned. 4

Neutrality in the Gulf War

When we now consider the position of Belgium and the Netherlands in respect of the Gulf war, it is beyond doubt that up to the moment of the decisions to dispatch mine-hunters to the area these two States were neutral in the broad sense of the term: they did not participate in the conflict, and neither were they regarded as “participants” by the parties to the conflict. There may, on the other hand, have been some room for doubt about their strict impartiality in relation to the conflict, as apparent, e.g., from their trading activities with either party. Yet, this does not seem to have exposed them to the risk of being no longer regarded as neutrals by a possibly disadvantages party. They provided, in short, clear illustrations of the classical concept of neutrality in respect of a given armed conflict. Quite some time before the events of 1987, the Dutch Government had had to deal with another issue involving neutrality in the Gulf. This arose in 1984, in the context of the possible export of some mine-hunters to Kuwait. More or less in connection with that possibility, the Prime Minister and the Minister for Foreign Affairs had paid an official visit to that country. Reporting on the visit in a note to the Second Chamber of Parliament, the Minister for Foreign Affairs

1040 Chapter 48 referred to the general policy of the Government in the matter of arms exports. In principle, this was stated to exclude the export of arms and other military matériel to areas of tension, i.e., countries involved in an armed conflict or where the chance of such a conflict breaking out was great. Admittedly, decisions on this point had to be taken on the merits of each case, and this involved an element of subjective assessment. As regards Kuwait, the note stated that this country could not “under the present circumstances be regarded as belonging to the ‘clearly definable cases’” of countries to which arms should not be exported: Kuwait is not at present involved in an armed conflict and the chance that it will join the belligerents of its own accord in the foreseeable future is, in the view of the Government, too small to warrant a decision from the outset not to permit military matériel to be exported to it. Kuwait is a small country in terms of surface and is far more likely to be threatened by its neighbours than to constitute a threat to them. Naturally, when applications for export permits are assessed, the Government will take into account whether the delivery in question is in reasonable proportion to the defence requirements of the country …

The matter was clarified further in a note dated 10 July 1987, informing the Second Chamber that the Government had decided in principle to issue an export licence for the delivery of mine-hunters to Kuwait. The note lists three considerations that had guided the Government. The first repeats the view that Kuwait was not directly involved in the armed conflict between Iran and Iraq and could not reasonably be supposed to become a belligerent of its own accord in the foreseeable future. As a second argument, the note, quoting Article 51 of the Charter, advances that: The Government does not … absolutely preclude deliveries [of military matériel] to countries that are making use of their inherent right of self-defence in cases of unprovoked aggression. Since the shipping lanes now have been mined by third parties, Kuwait would seem to be justified in relying on its inherent right of self-defence. Naturally, account has to be taken of the question whether the material delivered is in keeping with the claim to legitimate self-defence. In the present case, this can be answered affirmatively. The minehunters in question are purely defensive, and are not suitable for any wartime operations other than clearing mines.

11

12

See Note dated 27 Nov. 1984 (Second Chamber Annexes 1984-85, 18600 Chapter V, No. 41, p. 3); R.C.R. Siekman, “Netherlands State Practice for Parliamentary Year 19841985”, 17 NYIL (1987) p. 213. See Second Chamber Annexes 1986-87, 19700 Chapter V, No. 129, annex; the quoted texts are from the English translation in Siekman, op. cit. note 2, p. 390.

Freedom of Navigation and Neutrality in the Gulf War, 1980-1988 1041 The “mine-hunters in question” (which were never actually delivered to Kuwait, as that country in the end did not pursue its demands) were of the same type as the ones dispatched some months later to the Gulf area. It is therefore of interest to take note of the above argument, advanced at a time when the expedition of the Belgian and Dutch mine-hunters had not yet been decided but was under serious discussion. Evidently, the Dutch Government had even at this stage become firmly convinced (if it had ever doubted the fact) that mine-hunting operations in international waters need not bring a neutral country into conflict with its obligations as a neutral. There is no reason to suppose that either for Belgium or the Netherlands, any of this would have changed with the decisions to dispatch the mine-hunters. Indeed, the Dutch Government in its note to Parliament went out of its way to emphasize its neutrality: The Government wishes to emphasize that its decision to send mine-hunters in no way alters its strictly neutral stance in the conflict between Iran and Iraq. It wishes to maintain good relations with both countries. It was therefore with interest that the Government learned of official Iranian statements to the effect that the Government in Teheran too attaches great importance to the Gulf being kept free of mines.

The statement deserves some comments. First, the link it appears to lay between “strictly neutral stance” and “good relations with both countries” is indicative of a way of thinking that perceives neutrality not so much as a legal concept but rather as a political stance. Secondly, the reference to the supposed interest of the Iranian Government in “the Gulf being kept free of mines”, to the extent it was not made with “tongue in cheek”, was even more obviously political to the point of being irrelevant, in that it simply seemed to assume that the Iranians would be indifferent to who would do the mine-hunting. The Belgian Government, for its part, stated succinctly in the press communiqué announcing its decision, that: [w]hile still respecting strict neutrality in the conflict between Iran and Iraq, and in close collaboration with its European allies in the WEU, Belgium will 13

14

For the same reason, also the third and last consideration in the Note of 10 July (ibid.) is of interest: In addition to the object of self-defence … the delivery also serves another goal, namely safeguarding the public international law principle of freedom of navigation in international waters. The delivery of mine-hunters in the near future will help to ensure that the mines can be cleared, thereby restoring freedom of navigation in the Gulf. In this way, the delivery also serves genuine Western interests. See doc. i.2.1.

1042 Chapter 48 take part in purely defensive mine-clearing operations in the international waters of the Arab-Persian Gulf, for the purpose of ensuring that the principle of freedom of navigation is respected.

Neither in the Belgian nor in the Dutch parliaments did the matter of neutrality at that stage give rise to any major debate. In Belgium, one member of the Chamber of Representatives asserted without further explanation that his party was opposed to the expedition “because Belgium gives up its neutrality.” The Minister for Foreign Affairs could confine himself to reply that while the presence of mines in the Gulf was an evident consequence of the armed conflict, Belgium did not intervene in the conflict and intended to maintain strict neutrality. In the Netherlands, one member of the Second Chamber, finding himself in complete agreement with the view that the dispatch of the mine-hunters would not corrupt our neutrality, merely urged the Government to do its utmost to maintain that status. Another member, somewhat more critical of the Government position and heaving learned about an Iranian condemnation of the Dutch decision, inquired whether she was correct in assuming that this implied that Iran held another view of neutrality than the Dutch Government appeared to do. In his reply, the Minister for Foreign Affairs underscored the purely defensive nature of the planned mine-hunting activities in the interests of international navigation. For the rest, rather than discussing the question of neutrality as a legal concept, he concentrated on the political aspect of the effects the presence of so many foreign warships might be deemed to have on the existing tension in the Gulf area. Iranian statements to this effect he dismissed as inconclusive. One last member of the Dutch Parliament, speaking in a radio programme shortly after the Government had announced its decision, expressed misgivings about the light-hearted Government statement that “neutrality would be maintained.” His concern was based not so much on the planned mine-hunting activities themselves, however, but rather on the promised protection by British warships stationed in the area. To his mind, this implied that the Dutch ships 15

16 17 18 19 20

See doc. ii.3.1. The Belgian Minister for Foreign Affairs had already on 24 August 1987, in reply to a pointed question of an RTBF interviewer whether in the event of an active participation in mine-hunting activities in the Gulf, Belgium could still maintain its strict neutrality, declared that the Government was opposed to the continuation of the armed conflict in the Gulf and was willing to do everything to bring it to an end, but that it remained entirely neutral. See op. cit. note 10. See op. cit. note 6, p. 16. Mr Van Dis. Mrs Beckers-de Bruijn. See op. cit. note 10, 101-5248.

Freedom of Navigation and Neutrality in the Gulf War, 1980-1988 1043 would operate virtually under the British flag and, so he said, the United Kingdom had already clearly taken sides in the conflict. Unfortunately, the member in question did not repeat his point in the plenary session of the Second Chamber. This relieved the Minister for Foreign Affairs of the need to answer it. It may be added that to the present commentator, the misgivings were unfounded in so far as neutrality law was concerned; no matter how sympathetic to one or other party to the conflict the United Kingdom might have been, it had not exchanged its formal status as a neutral State for that of a belligerent power. A short while after the decisions to dispatch the Belgian/Dutch mine-hunters to the Gulf area had become public, American helicopters on 21 September 1987 attacked and sank an Iranian vessel, the Iran Ajr, on the accusation that it was engaged in mine-laying in international waters off Bahrain. The Dutch ministers of Defence and for Foreign Affairs, in a note of 16 October 1987 to the Second Chamber, simply mentioned this incident without comment. But the note also specified that the Minister for Foreign Affairs, in contacts with his colleagues from Iran and Iraq, had taken pains once again to emphasize the defensive character of our forthcoming presence in the area, a presence which, as he explained, in no way detracted from our strictly neutral stance in the conflict between the two countries. On the very date of the above note, a tanker of Kuwaiti origin but sailing under American flag in Kuwaiti territorial waters was hit by a rocket projectile, according to the United States, an Iranian Sidewinder. In retaliation, the United States on 19 October, after due warning, carried out an attack on the Iranian oil platform Rushadat, situated in international waters and purportedly also used as a basis for warlike activities against commercial navigation in the Gulf. The Dutch Minister for Foreign Affairs reported on this incident in a letter dated 20 October 1987 to the Second Chamber. The Government, so the letter states, had expressed its grave concern about the situation in the Gulf area, which had deteriorated to the point where the United States had found itself impelled to undertake military action to protect the right of free navigation. The Government hoped that the recent escalation would not lead to a further conflict between the United States and Iran. In this respect, it felt some alarm at the statement by the Iranian Government that the American action would not be left unanswered. While all this underscored the need for maximum endeavours towards a ceasefire between the parties to the conflict, the Dutch Government, reiterating that it

21 22

23

See Neuman, op. cit. note 1, p. 694. Basing himself on other grounds, the member, Mr Ter Beek, tabled a motion asking the Government to reconsider the decision (Second Chamber 1986-87, 20075 No. 4); the motion was defeated (plenary meeting of 10 Sept. 1987, Second Chamber 1986-87, Records, 101-5267). See doc. i.2.2.

1044 Chapter 48 maintained its strict neutrality in the conflict, saw in the recent events no reason to modify its policy as regards the dispatch of the mine-hunters. The two notes gave rise to renewed debate in the Second Chamber. Not surprisingly, the events they described had sharpened the awareness among members of the risks involved in the situation: risks not merely to international navigation in the Gulf area but also for the mine-hunters on their way to the area and, indeed, for Dutch neutrality in the sense of non-participation in the armed conflict. One member distinguished between the neutrality of the West European countries (which he qualified as “absolute”) and that of the United States (which he regarded as “theoretical”), and he wondered how Belgium and the Netherlands would be able to maintain their neutrality in the event of a further escalation of the conflict between Iran and the United States, or indeed if the British Navy became more closely involved with the American position in the conflict. The latter point was also raised by another member, who asked whether the Government had information about possible accords between the British and American Governments, which might considerably reduce British neutrality. Another member, who in general did not see any radical change in the situation over the previous few weeks, also regarded the confrontation between Iran and the United States as an important new fact and asked what influence it exerted on the position of the Dutch and Belgian ships and how neutrality should be maintained. Yet another member concluded from the recent events that the Netherlands was gradually being drawn into a situation where it would be difficult to maintain neutrality. A member who already in the earlier debate had asked some critical questions about the decision to dispatch the mine-hunters, now referred to the rules of engagement, which on the one hand appeared to require of the ships a de-escalating mode of behaviour but on the other hand permitted all necessary measures for the defence of ships and crews; and she asked where this would leave the neutrality of the Netherlands. Confronted with all these questions, the Minister for Foreign Affairs in the first instance repeated his belief that the recent American action could be qualified as controlled, limited and defensive. He had expressed concern at the possibility of a further escalation. In that respect, the United States had informed the 24 25

26 27 28 29 30

See doc. i.2.3. See Second Chamber 1987-88, 20075 No. 7: Report of a discussion between the Commissions for foreign affairs and defence with the Ministers for Foreign Affairs and of Defence, 21 Oct. 1987. Mr Van Mierlo, ibid. p. 1. Mrs Van Es, ibid. p. 5. Mr Frinking, ibid. p. 2. Mr van Traa, ibid. p. 3. Mrs Beckers-de Bruijn, ibid. p. 4.

Freedom of Navigation and Neutrality in the Gulf War, 1980-1988 1045 authorities in Iran that, although it took the matter of protection of vessels under the American flag seriously, it did not aim at an intensification of the confrontation. Only when prompted once again to enter into the issue of neutrality did the Minister acknowledge that he had no ready answer to the question of how the Dutch-Belgian task group could maintain its neutrality in the event of a further escalation of the conflict and a possible involvement of the British frigates; this, he said, would depend entirely on circumstances. This was the closest the Dutch Minister for Foreign Affairs came to acknowledging that the presence of the mine-hunters in the Gulf area could put the neutrality of the Netherlands at risk. The next day, in the plenary session of the Second Chamber and once again in response to a pointed question, he spoke in far less hesitant terms. He could not accept that we would renounce the protection of our own or a European vital interest, just because others might no longer regard us as neutral. The only form of partiality he recognized was in favour of our own or a European vital interest, an interest we wanted to protect and that lay at the root of the purely defensive operation we were now undertaking. And he concluded that: In the unlikely event that Dutch ships would be forced to take recourse to certain actions in pure self-defence, it cannot be the case that this would be tantamount to a loss of neutrality in the conflict. To my view, we would then be turning matters upside down.

In subsequent letters to and consultations with Parliament, the matter of neutrality was not raised again; fortunately, the situation had sufficiently de-escalated to deprive it of its acute character. This did not change even when another grave incident occurred: on 14 April 1988, the US frigate Samuel B. Roberts was hit by a mine east of Bahrain; the Americans retaliated by attacking and destroying two Iranian oil platforms and some further military action ensued. In this situation, rather than engaging in a discussion of neutrality, the Dutch-Belgian task force simply joined others in hunting and destroying the remaining mines in the area.

31 32 33 34 35 36

Ibid., p. 6. Mr Van Mierlo, ibid. p. 8. Ibid., p. 9. Mrs Beckers-de Bruijn, Second Chamber, plenary session of 22 Oct., Second Chamber 1987-88, 13-651. Ibid., 13-654; translated by this author. Note of the Ministers of Defence and Foreign Affairs on recent events in the Gulf, addressed to the Second Chamber by letter dated 20 April 1988; Second Chamber 1987-88, 20075 No. 17.

1046 Chapter 48 In Belgium, the events of October 1987 appear to have caused hardly a ripple in the political pond. The Minister for Foreign Affairs could confine himself to stating in a press communiqué that while Belgium deplored the escalation of violence, it would pursue its policy aiming to promote peace and to protect the freedom of navigation, always under observance of strict neutrality in respect of the conflict between Iran and Iraq. 5

Concluding Remarks

A first point to be noted is the “light-hearted manner” (to borrow a phrase of the member of the Dutch Parliament) in which Belgium and the Netherlands, along with other States, simply appear to have taken for granted that the military operations undertaken by both belligerent parties against international navigation in sea areas beyond their claimed zones of operations were unlawful. One may feel inclined to regard their stance as entirely justified, perhaps even on grounds of lex lata and at all events on the basis of lex ferenda. Yet a sign of awareness of the problems involved might have been welcome, if only to spur on the long overdue “reaffirmation and development” of the law of naval warfare and neutrality. Fortunately, and to some extent as an excuse of those who participated in the debate in our two countries, the specific tactics of laying mines indiscriminately in international waters appears particularly odious and indefensible even under the present uncertain state of the law. Then, it may be evident from the foregoing that in public debate in Belgium and the Netherlands, the question of whether the decisions to join in the minehunting operations in the Gulf area might affect the neutrality of these countries initially played a decidedly modest part. To the extent it was discussed at all, the focus was on neutrality in its political rather than legal connotations. Neutrality, in this perception, was a synonym for the maintenance of friendly relations with both parties. In 1984 the Netherlands Government had come somewhat closer to the notion of neutrality in its traditional, legal sense when as part of an argument concerning the possible export of mine-hunters to Kuwait, it had felt a need to explain that in the circumstances, the chance that Kuwait would “join the belligerents of its own accord in the foreseeable future” seemed slight indeed. At the time, Kuwait could hardly be said to be maintaining “friendly relations” with Iran. Yet it certainly was not eager to be drawn into the armed conflict, be it of its own accord (as the Dutch Government specified) or by an infuriated Iran that would no longer be prepared to regard and respect it as a non-participant. Kuwait, in other words, at the time provided a perfect example of a non-belligerent, i.e., neutral State.

37

See doc. ii.3.3.

Freedom of Navigation and Neutrality in the Gulf War, 1980-1988 1047 The fact that in the opening debate about the combined Belgian-Dutch mine-hunting operations so little attention was spent on neutrality in the sense of non-belligerency may find its explanation in a combination of factors such as geographical distance, relative innocuousness and purely defensive character of the activity under consideration, and the fact that similar activities by other States had not caused those States to be turned into parties to the armed conflict. It remains that if in September 1987 one of the parties to the conflict (for instance, Iran) had chosen to react differently to the departure and planned activities of the mine-hunters and regarded these not just as an unfriendly act (as some of the Iranian officials apparently have done) but as a “cause of war”, Belgium and the Netherlands might have found themselves in the position of (unwilling) parties to the conflict. This may now seem a mere theoretical possibility; yet there was a time when both Iranian fanaticism and its capacity to export violence might have been strong enough to make it a living reality. That this eventuality did not materialize was a sure sign that the political situation, both inside Iran and internationally, was no longer conducive to such extreme behaviour. To some extent, this change in the situation may simply have reflected the corrosion of the will to fight, caused by the long duration and attrition effect of the armed conflict with Iraq. Another important factor may have been the sustained efforts on the international level to bring about a termination of the hostilities. Both Belgium and the Netherlands had long been actively interested in these efforts, in the United Nations and elsewhere. When they had finally decided to become active also in another, more immediately practical sense by dispatching a task force of mine-hunters to the Gulf, a major part of the attention in the ensuing public debate continued to focus on the former aspect of the matter: viz., how this step would affect the attempts undertaken by the UN Secretary-General and others, to bring about a cease-fire in the area as a first step towards peace. Political considerations of this type in large measure eclipsed the somewhat more theoretical questions of the law of war and neutrality discussed in this paper. This changed briefly as a result of events in October 1987, when the threat of an escalating conflict between Iran and the USA, with possible involvement of the UK, caused an acute awareness among Dutch parliamentarians of the fragility of neutrality in its most pregnant sense of not being a party to the conflict. Soon thereafter, the sense of immediate threat subsided and neutrality no longer was an issue. It remains to place on record a development that came about at a late stage of the joint Belgian-Dutch presence in the Gulf area. As noted earlier, the Dutch and Belgian vessels had from the outset benefited of a protection of sorts by British frigates present in the area. This “close tactical co-ordination”, as it was styled, was the result of an agreement among the three Governments. The Belgian and Dutch Governments had always regarded this as a bare minimum, and they had continued their efforts to achieve closer co-operation. This goal was finally

1048 Chapter 48 realized with the conclusion, on 24 June 1988, of a tripartite agreement about the establishment of a trilateral task force. Composed of one Belgian, one Dutch and four British ships and under British operational control, the task force from 1 July operated in the area under the name “Calendar”. Subsequently, after the cease-fire of 12 August 1988 between Iran and Iraq, the trilateral task force co-operated closely with French and Italian units in a final sweep of a major shipping route in the southern part of the Gulf. With the conclusion of this operation named “Cleensweep” the long journey into alien waters had come to an end.

38 39

See doc. i.2.4. See doc. i.2.5.

PART 10 summing up

Chapter 49 The Centennial of the First International Peace Conference: Introduction*

1. The First Hague Peace Conference of 1899 (or, with its official name, the International Peace Conference) stands out as a landmark in the history of mankind, and rightly so. Not because it achieved the impossible – peace, or significant cuts in the armaments of States: far from it. But this was the first time a diplomatic conference had been convened to discuss these and suchlike issues outside any direct connection with topical events such as a war actually being waged or a peace that had to be concluded, and then not just for the sake of discussion but with the set aim to work towards tangible results. While there shall be more to say about the Conference and its results below, I may now simply note that it doubtless belongs in the class of international events worthy of being commemorated on the occasion of their one-hundredth anniversary. 2. This is precisely what was done with the Centennial of 1999, organised by the Governments of the Kingdom of the Netherlands and the Russian Federation under the aegis of the United Nations and within the framework of the UN Decade of International Law. Measured against its illustrious precedent of 1899, the 1999 Centennial stands out as the “bigger” event in every respect. It lasted longer: from the early initiatives to the present publication of the main reports and conclusions, a period of six years. It involved more actors: representatives of countless States as compared to the 26 of 1899; and, apart from States, the actors included international governmental and non-governmental organisations * 1

2 3

Published earlier in F. Kalshoven (ed.), The Centennial of the First International Peace Conference, Reports and Conclusions (2000) pp. 1-39. For a critical appraisal of the Conference and its aftermath, see: G. Best, “Peace conferences and the century of total war: the 1899 Hague Conference and what came after”, 75 International Affairs (1999) No.3, pp. 619-634. See also: G.A. Aldrich & C.M. Chinkin (eds.), “Symposium: The Hague Peace Conferences”, 94 AJIL (2000) pp. 1-98. For a general historical overview of the Conference, see: A. Eyffinger, The 1899 Hague Peace Conference: The Parliament of Man, the Federation of the World (1999). The idea was first publicly expressed by President Yeltsin in his 1995 address to the UN General Assembly. “Countless” because their numbers fluctuated by the day and were moreover different for the meetings in The Hague and St. Petersburg, respectively.

1052 Chapter 49 as well as local groups and individual persons – civil society at work! And this multitude of actors engaged in a great variety of activities, ranging from freestyle discussions on the Internet and individual papers to more structured seminars and (regional and other) conferences. 3. All this activity centred round the three themes that had also been the main items on the agenda of the 1899 Conference. These were, in the order of the commissions that dealt with them: the reduction of armaments, the laws of war on land, and the peaceful settlement of disputes. To stimulate and structure the debate, the organisers at an early stage had invited experts to prepare reports on each of these themes: Dr. Hans Blix on disarmament and arms control, Professor Christopher Greenwood on the laws of war, and Professor Francisco Orrego Vicuña and Dr. Christopher Pinto on dispute settlement. Their initial reports were distributed over all the known participants to the various activities and were also made available on the Internet, as were reports of preparatory seminars and conferences held in different parts of the world as they became available. 4. Thus prepared, the stage was set for the grande finale of 1999, in two phases. One, in May at The Hague, consisted of two events: 12-15 May, the tumult of the non-governmental Hague Appeal for Peace; and 18-19 May, first session of the more sedate, governmental Centennial Conference convened at the level of Legal Advisers. The other, from 22 to 25 June at St. Petersburg, was the second session of the Centennial. Both the Hague Appeal and the Centennial Conference produced a document at the end of their activities: the “Hague Appeal for Peace and Justice in the 21st Century” and the “Outcome of the Celebrations of the Centennial of the First International Peace Conference: Report on the Conclusions”. The Hague Appeal in its final shape is the product of a core group and may not even have been seen by a majority of the participants. And the Centennial Report is not a true report either: although promulgated among the participants, it was drawn up under the authority of the chairmen of the two meetings and does not attempt to provide an official, complete report of the discussions; rather, it aims to reflect the main views and trends of opinion that emerged from the debate. Both texts are included in this volume immediately after the reports of the Rapporteurs. 4 5 6

7

All these contributions were included on the CD-ROM accompanying the original book. Of the six rapporteurs originally invited (two for each topic) two were not in a position to finalise their reports. The “Hague Appeal for Peace and Justice for the 21st Century” was transmitted to the UN by a letter dated 17 May 1999 from the Permanent Representative of Bangladesh to the Secretary-General, and published as UN Doc. A/54/98. The “Chairmen’s Report on the Conclusions of the Centennial” likewise was transmitted to the UN by a letter dated 10 Sept. 1999 from the Permanent Representatives

The Centennial of the First International Peace Conference: Introduction 1053 5. After the above events, the Rapporteurs were given the opportunity to complete and adapt their reports so as to take into account, as appropriate, comments at the various stages of the celebrations. The present volume provides the final versions of the reports. It should be noted that these texts too, are not reports in the sense of reflections of proceedings: they are the product of their authors, who therefore are entitled to all the praise their writings deserve, while at the same time remaining alone responsible for the end result of their labours. 6. The reports are included in this book in the order of 1899: (1) the law relating to disarmament and arms control; (2) the laws of armed conflict; (3) dispute settlement. 7. As noted above, the Centennial measures as a “bigger” event than the Peace Conference had been. The difference in size accurately reflects societal changes that took place over the last century. It does not, of course, imply that the Centennial will go down in history as the more significant event as well: even by its aim, it was a far more modest affair than the Peace Conference had been. Even so, the comparison at least provides an excuse to ask ourselves for a moment: what, indeed, has made the Conference of 1899 qualify as an important event? This question obviously was also dealt with by the Rapporteurs, each in their own fields. Yet there is room for some brief remarks on my part too. And I should state immediately that while perhaps a failure in the eyes of the public at the time, it is precisely through its after-effects that the Peace Conference has earned its place on the list of really outstanding international events. 8. “Peace”, the goal that figured in its title, the Conference did not achieve, nor any system of compulsory dispute settlement; yet the modest steps realised in that area with the adoption of the Convention for the Pacific Settlement of International Disputes and the ensuing establishment of the Permanent Court of International Arbitration (PCA), have acted as the catalyst that set in motion further developments, up to and including the creation of the International Court of Justice (ICJ). A similar remark may be made about disarmament, or, more properly, rigorous reduction of armaments: nothing of the kind was realised, and one has to look very closely to find any result that even remotely resembled a disarmament measure. Yet here again, the idea had been firmly implanted that arsenals cannot be permitted unlimited growth both in a quantitative and qualitative sense, and also this idea would bear – always modest – fruit in the century that followed.

8 9

of the Netherlands and the Russian Federation to the Secretary-General, and published as UN Doc. A/54/381. On this, see the Report by Orrego Vicuña and Pinto, paras. 14 et seq. On this, see the Report by Blix, paras. 37 et seq.

1054 Chapter 49 9. The Conference scored its greatest instant success with the adoption of the Convention and Regulations Respecting the Laws and Customs of War on Land – rules on the conduct of warfare precisely in the type of situation it had vainly tried to preclude or bring under control in the first place. Disappointing though this may have been at the time, it has since become evident that this result too must be positively appreciated, marking as it does an important step on the road to what much later, in the 1970s, would come to be termed the “reaffirmation and development of the international humanitarian law applicable in armed conflict.” 10. Reaffirmation and development: the phrase aptly describes the struggle throughout the 20th century to preserve or restore the spirit of 1899 and, often against all odds, construct on that basis, systems and processes that might make for a better and safer world. It is not here the place, nor my competence, to sketch the history of that century. Rather, I merely wish to note a few points of particular relevance in the context of the Centennial, including some that follow from developments that have occurred in the period since the authors concluded work on their reports. 11. First, then, war, and the law relating thereto. Throughout the 20th century, wars were being waged in all shapes and sizes, from the two World Wars to the 198088 war between Iraq and Iran; to the wars of national liberation that brought an end to so-called salt-water colonialism; down to the odd short-lived border incident with prisoners of war at least on one side; to the strictly local, rapid secession of Slovenia from Yugoslavia – even all the way down to the construct of a 30hours armed conflict waged on 23 and 24 January 1989 at La Tablada, Argentina. In retrospect, it seems permissible to split the century into two periods, with the wars in its first half belonging mostly in the class of international armed conflicts (with the Spanish Civil War as a striking exception) and the majority of those in the second half falling under the heading of non-international armed conflicts. (The “wars of national liberation” of this period were regarded as internal affairs by

10 11

12

On this, see the Report by Greenwood, paras. 2.6 et seq. From 1974 to 1977, a diplomatic conference with that title was held in Geneva, to elaborate and ultimately adopt two Protocols Additional to the Geneva Conventions of 12 August 1949; texts in A. Roberts & R. Guelff, Documents on the Laws of War, 3rd ed. (2000) (hereinafter: Documents) at pp. 419, 481. The capture by members of the Movimiento Todos por la Patria of a military barracks located at La Tablada, followed by the recapture of the place by the army, which altogether had taken some 30 hours, was construed by the Inter-American Commission on Human Rights as an armed conflict in the sense of Art. 3 common to the Geneva Conventions of 1949; Report No. 55/97, Case No. 11.137, Argentina; OEA/Ser/L/V/ I.97, Doc.38, 18 Nov. 1997. See also Greenwood, Report paras. 3.31, 5.32 and 6.29.

The Centennial of the First International Peace Conference: Introduction 1055 the colonial Powers, although other actors, including the UN General Assembly, increasingly preferred to regard them as international armed conflicts.) 12. Ironically, this division of the century into two almost equal halves finds its parallel in a coincidental split in the development of the law of armed conflicts. Up to and including the Second World War, the relevant treaty law formally applied only in “wars” between States and could at best be made applicable in “civil wars” through the device of recognition of belligerency. Then, in 1949, the Diplomatic Conference that negotiated and adopted the Geneva Conventions for the protection of war victims, introduced into these instruments a common Article 3 that for the first time provided a short list of fundamental principles for the protection of persons not, or no longer, taking part in an internal armed conflict, and to be respected by all the parties to such a conflict whenever it occurred. Another closely related and equally important event occurred on 10 December 1948, when the UN General Assembly adopted the Universal Declaration of Human Rights: like the long list of human rights treaties that were to follow, this too set norms to be respected by States in all situations including those of armed conflict, unless expressly exempted. 13. Another noticeable innovation, already implicit in the foregoing, was the introduction in the Geneva Conventions of 1949 of the term “armed conflict.” This was not just a semantic device to get away from the odious “war” (as in the Charter Preamble’s “scourge of war”), nor from its politico-legal connotations (the “declared war”, perhaps even without any actual fighting yet with all its consequences for treaties, third parties etc.). Rather, “armed conflict” was expected to provide an objective description of given situations and thus determining the application of the Conventions (in their entirety, in a situation of international armed conflict; only common Article 3, in an internal armed conflict). Even though the new terminology is less immune from politicizing than may have been hoped, it is now in current use to indicate the law applicable in armed conflict, or international humanitarian law (IHL). Obviously, the word “war” has 13

14 15

16

At the 1974-77 conference mentioned in note 11, pressure in this direction resulted in the insertion into Protocol I (applicable in international armed conflicts) of Art. 1(4) classifying defined liberation wars in this category. Reprinted in Documents 195 (Convention I), 221 (Convention II), 243 (Convention III) and 299 (Convention IV). Emulating this example, the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (Documents p. 371) was likewise equipped with a provision on respect for cultural property in “conflicts not of an international character” (Art. 19). The existing IHL treaties do not make provision for an authoritative determination, as-it-were over the heads of the party or parties concerned, that a situation is one of armed conflict. The ICRC, for its part, usually prefers not to rely on qualifi-

1056 Chapter 49 also remained in use. Thus, in a political context: “The Vietnam War was a war of national liberation.” (It also was an – internal, or international, or internalyet-internationalised – armed conflict.) Or, as a simple alternative to the longer phrase “armed conflict”. And of course, frequently nowadays, in the phrase “crime of war”. 14. This brings me to the last feature marking the start of the second half of the 20th century I want to mention here: the post-World War Two trials at Nuremberg and Tokyo and the acceptance of the universality principle for “grave breaches” as defined in the Geneva Conventions, as first steps on the road to international regulation of individual criminal liability for violations of the law of armed conflict, or war crimes. 15. With all this, international society appeared well prepared to cope with the wave of internal armed conflicts that swept over the world in the period under review. A last important feature, detailed rules elaborating the principle of protection of civilian populations against the effects of hostilities, was added in 1977 with the adoption of two Protocols Additional to the Geneva Conventions of 1949, one (Protocol I) for international armed conflicts and the other (Protocol

17 18 19

cation of situations but rather goes for the protection of victims regardless. Among international political organs, the Security Council acting under Chapter VII of the Charter may decide, where applicable with binding force, that a given situation represents an armed conflict. Again acting under Chapter VII, the Security Council in 1993 established ICTY (see below, para. 24) and this body, as a judicial organ, has from its inception been determining, with legal effect, whether situations objectively qualified as (international or internal) armed conflicts. The recent Blaskić Judgement makes the point explicit when the Trial Chamber states that “the parties to the conflict may not agree between themselves to change the nature of the conflict, which is established by the facts whose interpretation, where applicable, falls to the Judge.” (emphasis added); The Prosecutor v. Tihomir Blaškić, Judgement, 3 March 2000, Case No. IT95-14-T, 29: para. 82. Besides war crimes, these trials also involved crimes against peace and crimes against humanity. Arts. 49 (Convention I), 50 (Convention II), 129 (Convention III), 146 (Convention IV). Much earlier, in 1919, the “Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties” submitted its plan for an international war crimes tribunal to the Preliminary Peace Conference at Versailles. The tribunal would have jurisdiction over actual perpetrators, those who ordered the crimes, as well as “all authorities, civil or military, belonging to enemy countries, however high their position may have been, without distinction of rank, including the heads of states,” who ordered or failed to prevent or repress violations of the laws or customs of war. And the applicable law would be “the principles of the laws of nations as they result from the usages established among civilised peoples, from the laws of humanity and from the dictates of the public conscience” – the Martens clause! Extracts in: L. Friedman, The Law of War, a Documentary History (1972) p. 842 et seq.

The Centennial of the First International Peace Conference: Introduction 1057 II) for internal armed conflicts, followed a little while later by the 1980 UN Conventional Weapons Convention with annexed Protocols, which in large part serve to protect civilians from the adverse effects of weapons such as land mines and incendiary weapons. 16. Yet, the more complete and elaborate the law of armed conflict, the less it was respected, to the point where, in the closing decade of the century, persons and objects protected under the law such as civilians and civilian objects, or Red Cross workers and their means of transport appeared to have become the targets of choice, and this not merely in so-called “failed States”. Reactions to this alarming state of affairs were numerous and continue to this day. A few of these may be mentioned here. 17. At the instigation of the ICRC, the Swiss Government convened a first International Conference for the Protection of War Victims, Geneva, 30 August – 1 September 1993. In the opening paragraph of the Final Declaration of the Conference, the participants “solemnly declare” that they: refuse to accept that war, violence and hatred spread throughout the world, and fundamental rights of persons are violated in an increasingly grave and systematic fashion. We refuse to accept that wounded are shown no mercy, children massacred, women raped, prisoners tortured, victims denied elementary humanitarian assistance, civilians starved as a method of warfare, obligations under international humanitarian law in territories under foreign occupation not respected, families of missing persons denied information about the fate of their relatives, populations illegally displaced, and countries laid to waste.

18. Similar expressions of dismay may be found in other declarations made in the course of the closing decade of the century. Particularly striking were the statements delivered on the occasion of the 50th anniversary of the Geneva Conventions, on 12 August 1999 in Geneva. Thus, Kofi Annan, SecretaryGeneral-General of the United Nations, focussing on the fate of civilians, noted that “the ethnic wars of the 1990s have been characterised by the abominable practice of making civilians the very targets of warfare, in campaigns of genocide and ‘ethnic cleansing’.” And he continued: 20 21

22

Protocol I, Part IV, Civilian Population; Protocol II, Part IV, Civilian Population. The full title is “UN Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects.” The three original Protocols are on weapons the primary effect of which is to injure by fragments which in the human body escape detection by X-rays (I), the use of mines, booby-traps and other devices (II), and the use of incendiary weapons (III); 19 ILM (1980) 1523; Documents p. 515. The Final Declaration was published in 75 IRRC (1993) p. 337 et seq.

1058 Chapter 49 It is not, therefore, merely a question of protecting civilians in armed conflict, but protecting them from armed conflict. These flagrant violations of international humanitarian law – the wholesale expulsion of an entire people from their native land, summary and arbitrary executions, mutilation, rape, forced displacement, denial of the right to food and medicines – have taken place not as the effect of war, but as the essence of warfare. … As the United Nations enters a new century, our commitment to ensuring respect for international humanitarian law and ending the culture of impunity will be at the heart of our efforts to promote peace and security. As we do so, we will continue to find guidance, inspiration and courage in the principles of the Geneva Conventions.

19. One way the Secretary-General could give expression to this commitment was by announcing that on that very day, his Bulletin on Observance by United Nations forces of international humanitarian law, dated 6 August 1999, had entered into force, thus (at least temporarily) putting an end to a discussion about application of IHL to UN forces that had been going on for a very long time. 20. The celebration of the 50th anniversary of the Geneva Conventions was marked by the signing of a Solemn Appeal, by which the signatories “[called] on the world:” to reject the idea that war is inevitable and to work tirelessly to eradicate its underlying causes; to demand of those involved in armed conflicts and all who are in a position to influence the course of such conflicts that they respect the essential humanitarian principles and the rules of international humanitarian law; to spare civilians the agony of war; to foster relations between individuals, peoples and nations on the basis of the principles that inspired the Geneva Conventions, namely: respect for human dignity in all circumstances; compassion for those who suffer; solidarity.

21. The 27th International Conference of the Red Cross and Red Crescent, Geneva, 31 October – 6 November 1999, took note of this appeal, fully endorsed it and “[undertook] to contribute towards the achievement of its aims.” It should be noted that the Conference was as much a matter of the participating States 23

ST/SGB/1999/13, reprinted in Documents 721. See Greenwood, Report paras. 3.483.57; and, by the same author, “International Humanitarian Law and United Nations Military Operations”, 1 YIHL (1998) pp. 3-34.

The Centennial of the First International Peace Conference: Introduction 1059 parties to the Conventions as of the components of the Red Cross and Red Crescent Movement (the national societies, their International Federation, and the ICRC). The Conference, which had as its motto “the power of humanity”, also adopted a Plan of Action for the years 2000-2003 (i.e. up to the next regular International Conference). The first chapter lists five final goals to be achieved for the “protection of victims of armed conflict through respect of international humanitarian law,” and elaborates these into a number of concrete undertakings. 22. At the United Nations, too, the alarming level of disrespect for civilians and other victims of armed conflict caused much concern. On 17 September 1999, after a two-day debate on a report of the Secretary-General on the protection of civilians in armed conflict, the Security Council adopted a resolution by 24

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26

The goals listed are the following: (1) full compliance by all the parties to an armed conflict with their obligations under IHL to protect and assist the civilian population and other victims of the conflict and to respect protected objects; (2) an effective barrier against impunity through the combination of relevant international treaties and national laws concerning the repression of violations of IHL, and the examination of an equitable system of reparations; (3) universal acceptance of IHL and the adoption of all necessary measures by States at the national level to ensure the implementation of their obligations under international law; (4) integration, by States, of their obligations under IHL in relevant procedures and training; promotion of this law among relevant persons and bodies; (5) conformity of weapons with IHL, the establishment of effective controls on the availability of arms and ammunition, and an end to the human tragedy caused by anti-personnel landmines. Given the frequency of internal armed conflicts and the difficulty of having basic precepts of humanity respected in those situations, particular interest attaches to the 3rd para. elaborating goal 1.1: Organised armed groups in non-international armed conflict are urged to respect international humanitarian law. They are called upon to declare their intention to respect that law and teach it to their forces. (emphasis added) While such an expression of intention to respect IHL may be a useful device to clarify the stance of organised armed groups in that regard, the problem remains that the government of a country involved in the conflict may be unhappy with such a declaration on the part of a party they do not wish to recognise, or see recognised, as a party to the conflict. Report of 8 Sept. 1999, S/1999/957. Reiterating his concern expressed on the occasion of the 50th anniversary of the Geneva Conventions, the Secretary-General writes (para. 8) that: In many of today’s armed conflicts, civilian casualties and the destruction of civilian infrastructure are not simply by-products of war, but the consequence of the deliberate targeting of non-combatants. The violence is frequently perpetrated by non-state actors, including irregular forces and privately

1060 Chapter 49 which it “strongly [condemned] the deliberate targeting of civilians in situations of armed conflict as well as attacks on objects protected under international law, and [called] on all parties to put an end to such practices.” 23. Again, in the General Assembly debate on the end of the UN Decade of International Law and the report on the Centennial, a message of the SecretaryGeneral stated that: Notwithstanding the achievements of the Decade, there is little reason for euphoria when we look at the current state of international affairs. International and national conflicts are still a part of our life today. Loss of life, untold suffering, hunger, dangerous diseases and denial of the basic rights of hundreds of thousands of human beings is a sad reality.

24. Among the “achievements of the Decade” the Secretary-General mentioned in his message, I single out two that strike me as particularly significant, so to speak, for the preservation of human dignity in that all too bleak closing decade of the 20th century. The first was the establishment by the Security Council of the International Tribunal for the former Yugoslavia (ICTY, 1993) and of a similar Tribunal for Rwanda (ICTR, 1994). These measures, in themselves already a quantum leap in international society’s reaction to situations of blatant, gross and systematic violations of IHL including crimes against humanity and genocide, were completed in 1998 with the adoption of the Rome Statute of the International Criminal Court (ICC). Once established, the ICC will be permanently available to deal with “the most serious crimes of concern to the interna-

27 28 29

30 31

financed militias. In many conflicts, belligerents target civilians in order to expel or eradicate segments of the population, or for the purpose of hastening military surrender. In the next paragraph, he recognises the difficulty in respecting civilians that nowadays, “the dividing line between civilians and combatants is frequently blurred.” S/RES/1265 (1999). The Resolution sets forth a number of suggestions and recommendations for the improvement of the lamentable situation. Meeting of 17 Nov. 1999, A/54/PV.54. S/RES/827 (1993), approving the Report of the Secretary-General pursuant to para. 2 of its earlier Res. 808 (1993) [S/25704 & Add. 1 (1993)] with annexed Statute of the International Tribunal (para. 1), and establishing the Tribunal (para. 2); extracts of the Statute in Documents p. 565. S/RES/995 (1994), with annexed Statute of the International Tribunal for Rwanda; extracts of the Statute in Documents p. 615. Adopted on 17 July 1998 by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, A/Conf.183/9*; extracts in Documents p. 667.

The Centennial of the First International Peace Conference: Introduction 1061 tional community as a whole,” as opposed to the ad-hoc Tribunals which have their basis in political decisions of the Security Council. As with the Tribunals, the jurisdiction of the ICC will encompass defined violations of IHL committed in internal armed conflicts as well. 25. The other achievement I mention here consists in the adoption of an impressive series of treaties or protocols to existing treaties: 1993, the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons; 1994, the Convention on the Safety of UN and Associated Personnel; in 1995, a new Protocol IV on Blinding Laser Weapons and in 1996, an amended Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and 32 33

34

35 36 37

Art. 5(1) of the Statute. Writing in his Report about the jurisdiction of ICTY over the deliberate targeting of civilians, Greenwood refers in a footnote (101) to the case pending before the Tribunal of the Croatian General Blaskić “which involved allegations of unlawful bombardment”. In its recent Judgement (supra, note 14) the Trial Chamber finds the accused guilty, first, of “having ordered a crime against humanity,” inter alia, for “attacks on towns and villages”. It also finds that “by these same acts, in particular, as regards an international armed conflict, General Blaskić committed: a violation of the laws or customs of war under Article 3 of the Statute and recognised by Art. 51(2) of Additional Protocol I: unlawful attacks on civilians (count 3),” and another similar violation “recognised by Article 52(1) of Additional Protocol I: unlawful attacks on civilian objects (count 4)” (etc.). The Chamber’s argument on the latter point runs as follows. On the one hand (para. 170): it should not be necessary to rule on the applicability of Protocol I. The specific provisions of Article 3 of the Statute satisfactorily cover the provision of the said Protocol relating to unlawful attacks upon civilian targets. The specific provisions of Common Article 3 [of the Geneva Conventions] also satisfactorily cover the prohibition on attacks against civilians as provided for by Protocols I and II. While this suggested the possibility of a finding of guilt for a violation of customs of war, the Chamber, having found earlier (paras. 75 et seq.) that the conflict was international, went on to point out (para. 172) that both parties had ratified the Protocols and moreover had signed an agreement in 1992 that they would be bound by Arts. 51 and 52 of Protocol I dealing with attacks on civilians and civilian objects. Protocol I thus applying as written law of war, the application of Protocol II was excluded – hence, the express phrase in the Disposition “as regards an armed conflict”. In parallel with these developments on the political and diplomatic front, another noticeable development is the remarkable increase in public attention, not just for the events of war but for the punishment of perpetrators and their bosses. As a particularly interesting example, reference may be made here to R. Gutman & D. Rieff (eds.), Crimes of War: What the Public Should Know (1999). 32 ILM (1993) p. 800. 34 ILM (1995) p. 484. 35 ILM (1996) p. 1218; Documents p. 535.

1062 Chapter 49 Other Devices, both to the Conventional Weapons Convention of 1980; 1997, the Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction; and finally, by a diplomatic conference which convened at The Hague from 15 to 26 March 1999, a Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (opened for signature at The Hague on 17 May, the day before the start of the official Centennial celebrations, and vastly improving the system of protection provided by the Convention). 26. The Secretary-General’s report is silent on one feature that yet appears to be of increasing importance in the application and interpretation of IHL. It is the inclination to rely on customary law, or what is held for it, occasionally on grounds of actual practice of belligerent parties but where that is lacking (or may be regarded as unsatisfactory) on the basis of expressions of opinion or intuition as found, e.g., in UN General Assembly or Security Council resolutions. While the ICJ has cautiously ventured onto this path in the Nicaragua case and in its Nuclear Weapons Advisory Opinion, ICTY is the real trend setter here. That 38 39 40 41

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44

35 ILM (1996) p. 1206; Documents p. 536. 36 ILM (1997) p. 1507; Documents p. 645. Documents p. 699. It may be noted here that work is in progress on a solution of yet another problem: that of the protective emblem (with the Israeli Magen David Adom as the greatest stumbling bloc). If all goes according to expectations, the end result might be a third Protocol to the Geneva Conventions of 1949, coupled with the requisite amendments to the Statutes of the International Red Cross and Red Crescent Movement. This might then be a first, welcome result in this new century. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, p. 14, at pp. 103-104: paras. 217-219. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 226, paras. 78-82, setting great store by the Martens Clause in the Preamble to the 1899 Hague Convention on Land Warfare, repeated in a modernised version in Art. 1(2) of Additional Protocol I, 1977. Thus, in the Judgement of Trial Chamber II ( Judge Antonio Cassese, Presiding) in Prosecutor v. Zoran Kupreškić et al., 14 Jan. 2000, Case No. IT-95-16-T, the Tribunal raises the question whether the conventional prohibitions of reprisals against the civilian population and civilian objects (Arts. 51(6) and 52(1) of Additional Protocol I, 1977), “assuming that they were not declaratory of customary international law, have subsequently been transformed into general rules of international law.” In the lengthy and complicated argument by which it arrives at a positive answer, a striking feature is the juxtaposition of its admission that “there does not seem to have emerged recently a body of State practice consistently supporting the proposition that one of the elements of custom, namely usus or diuturnitas has taken shape” with the statement that “[t]his is however an area where opinio iuris sive necessitatis plays a much greater role than usus, as a result of the aforementioned Martens Clause.” Ibid.,

The Centennial of the First International Peace Conference: Introduction 1063 Tribunal obviously finds itself in the unique, and uniquely difficult, position of having to adjudge complex cases of individual criminal liability on the basis of a set of rules that were not drafted for that purpose, were not earlier tested in the context of criminal procedure, and especially in so far as applicable in internal armed conflicts, leave many substantive questions wide open. ICTY moreover is performing its functions in an increasingly “humanitarian” climate of public opinion – with the actual events, in contrast, continuing to deviate markedly from “desirable” conduct. 27. In these circumstances, the temptation for judges to “find” customary law on the basis of civilised opinion rather than of crass conduct must be strong indeed. Even so, and with all due respect, judges might be suggested to pay somewhat more marked attention to the actual behaviour of non-State parties (and, indeed, of the States themselves), thus reducing the risk of creating over-optimistic expectations, especially when the point at issue is, for instance, whether an IHL treaty provision accepted after long and acrimonious debate for international armed conflict only, may now be transplanted as customary law to situations of internal armed conflict as well. 28. In this whole matter, we are eagerly awaiting the study on “customary rules of IHL applicable in international and non-international armed conflicts” the ICRC has been invited to carry out and which, we are informed, may be expected

45

p. 205: para. 527. See, in this connection, Greenwood, Report para. 5.26, wondering (with Sir Hersch Lauterpacht) whether “criminal trials are the best forum in which to resolve difficult questions about the content of the law regarding weapons, targets and the conduct of hostilities.” And see L. Zegveld, Armed Opposition Groups in International Law: The Quest for Accountability, thesis Rotterdam (2000) Part 2, paras. 15-19, noting in the closing sentence of para. 19 that “the primary role international bodies play in articulating opinio iuris fits in the current trend that the practice of international bodies is becoming increasingly important at the expense of the actual practice of states.” On the Martens Clause see: A. Cassese, “The Martens Clause: Half a Loaf or Simply Pie in the Sky?” in 12 European Journal of International Law (2000) pp. 187-216. On its historical origin (not a masterpiece composed by Martens to save the Conference but a compromise formula written in Brussels and, in slightly modified form, dictated by Auguste Beernaert, Head of the Belgian delegation, to Frédéric de Martens as Head of the Russian delegation, “qui le présenta comme émanant de lui-même”) see R. Coolsaet, “La Belgique et la première Conférence de la Paix de La Haye (1899)”, essay written for the Centennial (on CD-ROM). As for reprisals against the civilian population, both Italy (in somewhat oblique terms) and the UK (in crystal-clear language) have reserved the right to resort to such reprisals as an ultimum remedium and subject to a number of conditions that bring such planned actions in line with the classical rules on recourse to reprisals. See, by this author, “Reprisal”, in Gutman & Rieff, op. cit. note 34, p. 309; and his Belligerent Reprisals (1971, reprinted 2005).

1064 Chapter 49 to appear in print in 2001. Both the amount of time that has passed since the original request was made and the quality of the persons involved in the study give us every reason to look forward to a most valuable, thoroughly researched and well-documented end result. 29. Turning next to the matter of arms reduction, it may be noticed that in spite of the two “big bangs” over Japanese cities that, putting a final end to the Second World War, marked the transition to the second half of the 20th century, the UN Charter does not single out the “atom bomb” as a feature of special concern. Indeed, disarmament and the regulation of armaments figure in the Charter in the broadest possible terms, as a matter the General Assembly “may consider” and the Security Council is responsible for formulating plans about. These rather vague terms bring to mind the somewhat more precise formulation in the Covenant of the League of Nations, which set the goal as the “reduction of national armaments to the lowest point consistent with national safety.” That goal may have been more precise, but at the end of the road the result was nil. 46

47

48

49 50

The invitation to undertake the study came from the 26th Int’l Conf. of the Red Cross and Red Crescent, Geneva, Nov. 1995, endorsing a suggestion to that effect of an Intergovernmental Group of Experts for the Protection of War Victims which had met in Jan. 1995 on the invitation of the Swiss Government as a follow-up to the Int’l Conf. for the Protection of War Victims, Geneva, 30 Aug.-1 Sept. 1993 (see above, para. 17). Art. 11(1): “The General Assembly may consider the general principles of co-operation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments, and may make recommendations with regard to such principles to the Members or to the Security Council or to both.” Art. 26: “In order to promote the establishment and maintenance of international peace and security with the least diversion for armaments of the world’s human and economic resources, the Security Council shall be responsible, with the assistance of the Military Staff Committee referred to in Article 47, plans to be submitted to the Members of the United Nations for the establishment of a system for the regulation of armaments.” Covenant, Art. 8. The League made two major attempts to give effect to this provision. The first was the 1925 International Conference on the Control of the International Trade in Arms, Munitions and Implements of War (which drafted a never-ratified convention on supervision of the private arms trade, and which as a by-product, produced the Gas Protocol: the 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare; Documents p. 155). The other was the Disarmament Conference, 1932-34, which strove to bring about a complex set of agreements both on quantitative and qualitative disarmament among the participating States, but succumbed in the end to the political forces that were undermining the League. On this whole episode, see, by this author, “Arms, Armaments and International Law”, 191 RdC (1985-II) p. 187, at pp. 307-309.

The Centennial of the First International Peace Conference: Introduction 1065 30. In this respect, the post-World War Two record, although better, is decidedly mixed. As is evident from the Report of Dr. Blix, attention for a long time concentrated almost exclusively on the issue of nuclear weapons, sometimes together with the other so-called weapons of mass destruction: bacteriological (biological) and chemical weapons. His Report also shows that on these issues a good deal has been achieved. B and C weapons are now categorically banned, by treaties of 1972 and 1993, respectively; and a long list of bilateral and multilateral treaties deal more or less effectively with various aspects of the existence and the ensuing threat of nuclear weapons. That this threat remains a matter of grave international concern is evidenced, for instance, by the fact that half of the 22 resolutions the General Assembly adopted on 1 December 1999 under the heading “general and complete disarmament” deal with nuclear weapons. One, entitled “Towards a nuclear-weapon-free world: The need for a new agenda”, expresses the Assembly’s concern “at the prospect of the indefinite possession of nuclear weapons, believing that the contention that nuclear weapons can be retained in perpetuity and never used is not supported by the history of human experience” and then sets forth a 22-points plan of action towards further reduction of nuclear weapons. It may be noted in passing that in terms of the Charter provisions, such a plan of action might rather have been expected from the Security Council. 31. Always on the matter of nuclear weapons, a positive point is that in April 2000, the Russian Duma ratified the bilateral (US-Russia) START II nuclear arms reduction treaty and endorsed the multilateral Comprehensive Test Ban Treaty (CTBT). In either case, the United States has yet to follow suit. The Russian steps were accompanied with some qualifying statements, though. One was the announcement of a new policy on use of nuclear weapons, reserving the option of first use even in the face of an attack with conventional weapons. The other point concerned the American desire to develop weapon systems against longrange missile attacks from “rogue” countries or terrorist groups: if the US were to go ahead with this plan (which Russia felt would be in contravention of the 1972 Treaty on the Limitation of Anti-Ballistic Missile Systems, or ABM Treaty) it would feel free to reconsider its position in relation to START II. 32. When it comes to so-called conventional weapons (the weapons that are actually used in armed conflicts) the record of the post-World War Two period 51 52 53

A/RES/54/54 A-F, K, L, P, Q. A/RES/54/54G. This may be a sign of a loss of confidence in the deterrent effects of the Russian conventional armed forces. An interesting question is how the Russian authorities would explain this shift in their position in the light of the ICJ Advisory Opinion on nuclear weapons (see above, note 44).

1066 Chapter 49 is hardly any better than that of the League period. The single treaty qualifying as a disarmament instrument in this category of weapon is the 1997 Ottawa Convention banning anti-personnel mines. Reference may also be made of the 1980 Conventional Weapons Convention, which, although setting limits to use rather than possession of certain weapons and thus mentioned under the heading of IHL treaties, in its Preamble pays ample lip service to the issue of disarmament. Then, on the level of concrete measures, mention must of course be made of the arms embargoes the Security Council has occasionally (rather than systematically) imposed in respect of countries or regions in conflict. 33. As for public debate at the General Assembly, the discussions in its regular and special sessions on conventional weapons for a long time were no more than repetitive statements for the record (and the home front), showing a clear lack of political will seriously to tackle the matter. 34. The dramatic events of the last decade may now finally have made international society acutely aware that the issue of small arms, and of conventional weapons generally, is indeed an urgent matter. A number of recent statements and declarations demonstrating this awareness deserve to be mentioned here, and first of all, the Report on the Conclusions of the Centennial Conference

54 55 56

57 58 59

See above, para. 25 and note 40. See above, para. 15 and note 22. The 6th, 7th and 9th paragraphs of the Preamble read as follows: Desiring to contribute to international détente, the ending of the arms race and the building of confidence among States, and hence to the realization of the aspiration of all peoples to live in peace, Recognising the importance of pursuing every effort which may contribute to progress towards general and complete disarmament under strict and effective international control … (etc.) Wishing to prohibit or restrict further the use of certain conventional weapons and believing that the positive results achieved in this area may facilitate the main talks on disarmament with a view to putting an end to the production, stockpiling and proliferation of such weapons … (etc.) On the day of writing this part of the Introduction, the 17th of May 2000, the Security Council unanimously imposed an arms embargo on Ethiopia and Eritrea. See the Report by Dr. Blix, paras. 71 et seq. See also, by the present author, op. cit. note 50, pp. 319, 322. Para. 57, recognising that “small arms … had been responsible for most casualties in recent conflicts” and recommending that “an international code of conduct might be developed, including, inter alia, criteria for export of small arms, in addition to existing regional arrangements.”

The Centennial of the First International Peace Conference: Introduction 1067 and the Plan of Action adopted by the 27th International Conference of the Red Cross and Red Crescent. 35. The UN Secretary-General, taking up the issue in his report to the Security Council on the protection of civilians in armed conflicts, “recommend[s] that the Security Council:” Impose arms embargoes in situations where civilians and protected persons are targeted by the parties to the conflict, or where the parties are known to commit systematic and widespread violations of international humanitarian and human rights law, including the recruitment of child soldiers; and urge

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Final goal 1.5 requires, inter alia, “the establishment of effective controls on the availability of arms and ammunition.” This goal is elaborated as follows: States enhance the protection of civilians in armed conflict and postconflict situations by seeking to strengthen controls on the availability of arms, in particular small arms and ammunition, at the national, regional and international levels, including by improving export regulations. States examine the establishment of means to integrate the consideration of respect for international humanitarian law into national decision-making on transfers of arms and ammunition, and, where relevant, examine ways of integrating such considerations into “codes of conduct”. The Movement [of the Red Cross and Red Crescent] will promote public awareness of the human costs of unregulated arms transfers and widespread arms availability and continue to promote the ratification, and faithful implementation, of the relevant norms of international humanitarian law governing weapons. S/1999/957, 8 Sept. 1999, para. 23: The widespread use of small arms, light weapons and anti-personnel landmines has had a significant impact on the scope and level of the violence that affects civilian populations in armed conflict. The absence of effective controls on the transfer of small arms along with their low cost make them popular weapons in today’s conflicts. These light and easy-to-use weapons have made it much easier to turn children into soldiers. Their easy availability to untrained combatants has also greatly increased the risks of delivering humanitarian assistance in affected areas. Para. 55: The proliferation and abuse of light weapons and small arms fuel conflicts, exacerbate the suffering of civilian victims and contribute to the breakdown of societies. A number of international and regional initiatives are seeking to address this difficult problem. I fully endorse these initiatives. Controlling the availability of arms is an essential prerequisite for a successful peace-building process. It requires a multi-dimensional approach involving demobilisation, rehabilitation of combatants, law enforcement, measures to stop illegal trafficking and regulations for the legal registration and use of arms.

1068 Chapter 49 Member States to enforce these embargoes in their own national jurisdictions.

Introducing his report to the Council, he emphasises that: “To ensure that these crises are brought to an end, the United Nations must be ready to respond with more than meetings, speeches and reports. It must take action in the name of the principles of the Charter and the values of humanity.” The response of the Security Council, although more cautious, at all events acknowledges the existence of an “excessive accumulation and destabilising effect of small arms and light weapons.” 36. One week later, on 24 September 1999, the Council had the same matter on its agenda again. The Presidential Statement issued after the debate inter alia makes the following points: recognition of the “destabilising accumulation” of small arms; emphasis that “the challenge posed by small arms is multifaceted and involves security, humanitarian and development dimensions,” and emphasis on “the importance of regional co-operation in tackling the issue of illicit trafficking in small arms.” The Council also welcomes the idea of “an international conference on the illicit arms trade in all its aspects no later than 2001,” encouraging Member States “to participate actively and constructively” in the preparations for this conference, “with a view to ensuring that the conference makes a meaningful and lasting contribution to reducing the incidence of illicit arms trafficking.” Members participating in the discussion may have cast their minds back to the conference held in 1925 under auspices of the League of Nations, which ended with a still-born convention on the arms trade. That should not happen a second time. 37. Broaching the matter in the General Assembly on the occasion of the closure of the UN Decade of International Law, Mr. Hans van Mierlo, Minister of State and representative of the Netherlands Government, but speaking first and foremost as Chairman of the Dutch National Committee for the celebrations of the Centennial in The Hague in May 1999, had the following to say: 62 63 64

65 66

Para. 26. Press Release SG/SM/7134 SC/6729, 16 Sept. 1999; emphasis added. S/RES/1265 (1999), 17 Sept. 1999, para. 17: Notes that the excessive accumulation and destabilising effect of small arms and light weapons pose a considerable impediment to the provision of humanitarian assistance and have a potential to exacerbate and prolong conflicts, endanger the lives of civilians and undermine security and the confidence required for a return to peace and stability. S/PRST/1999/28. See above, note 52.

The Centennial of the First International Peace Conference: Introduction 1069 In the St. Petersburg sessions of the centennial celebrations, I took up the issue of small arms as one of the remaining gaps in international law today. The Norwegian Minister for Foreign Affairs had done likewise even earlier, about a year ago, in his famous Fridtjof Nansen memorial lecture. Last February, at a preparatory meeting of the centennial celebrations in New Delhi, some speakers even identified small arms proliferation as a greater threat to humanity than nuclear weapons. An estimated 500 million to 1 billion small arms are in circulation world-wide. They cause untold suffering, destabilise societies and prolong conflicts, and when conflicts end, they stand in the way of reconstruction and sustainable development. In 46 out of the 49 conflicts that have taken place during the Decade of International Law, small arms were the only weapons used … Regulation of the small arms issue should be dealt with as a matter of priority.

38. The resolution adopted after the debate on the results of the Centennial (and on the report of the Sixth Committee) does not specifically mention the smallarms issue. Yet the item may be regarded as incorporated, together with all other specific items, in the invitation extended to “States, organs of the United Nations, international organisations and other relevant international forums to take note of the outcome of the centennial of the first International Peace Conference and to consider, where appropriate: (a) Giving attention to the outcome of the thematic discussions within the sphere of their respective competencies or mandates;” (etc.). 39. Back again at the Security Council, the matter crops up once again on 30 November 1999 in a one-day debate on the role of the Council in the prevention of armed conflicts. The Presidential Statement issued after the debate notes in a paragraph devoted to “preventive measures such as the establishment of demilitarised zones and preventive disarmament” that “progress in preventing and combating the excessive and destabilising accumulation of and illicit trafficking in small arms and light weapons is of vital importance to the prevention of armed conflict.” 40. The issue was under discussion at the same time in the General Assembly as well, this time on the report of the First Committee and under the item “general and complete disarmament”. As mentioned before, half of the resolutions adopted at the end of the debate, on 1 December 1999, dealt with the nuclear issue and the other half therefore with general matters, including conventional weapons and small arms in particular. Two of these (A/RES/54/54I and O) have 67 68 69

A/54/PV.54, 17 Nov. 1999. A/RES/54/27, 17 Nov. 1999. S/PRST/1999/34, 30 Nov. 1999.

1070 Chapter 49 an identical title (“transparency in armaments”), use largely identical language and decide in identical terms “to include in the provisional agenda of its fiftyfifth session the item entitled ‘Transparency in armaments’.” This seems wasteful and may not be the best manner to promote the cause of transparency in armaments. 41. Three resolutions deal with the problems posed by the accumulation of small arms: “Small arms” (V), “Illicit traffic in small arms” (R) and “Assistance to States for curbing the illicit traffic in small arms and collecting them” ( J), illustrating the complexity of the issue. Worth noting is the decision “to convene the United Nations Conference on the Illicit Trade in Small Arms and Lights Weapons in All Its Aspects in June/July 2001.” 42. The issue of small arms and other conventional weapons came up again recently in a report of the Secretary-General to the Security Council on the role of UN peacekeeping in disarmament, demobilisation and reintegration. Shifting the issue from the theoretical to a concrete and starkly realistic level, the report defines disarmament as: the collection of small arms and light and heavy weapons within a conflict zone. It frequently entails the assembly and cantonment of combatants; it should also comprise the development of arms management programmes, including their safe storage and their final disposition, which may entail their destruction. Demining may also be part of this process.

Through this brief paragraph, one glimpses the case histories of disarmament and peace making efforts in theatres such as Northern Ireland, Angola, Cambodia, Bosnia and Kosovo – to mention just a few. 70

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A/RES/54/54/V, op. para. 1; the Conference will be hosted by the Swiss Government at Geneva. – In an address to the Millennium Forum (an NGO meeting preceding the September 2000 events, see next note), New York, 22 May 2000, the SecretaryGeneral expressed the hope that “civil society organisations will be invited to participate fully” in the planned Conference. From among the remaining resolutions under this item I single out A/RES/54/54/ U on “Convening of the fourth special session of the General Assembly devoted to disarmament”. Recalling the special sessions on that topic of 1978, 1982 and 1988 and reiterating “its conviction that a special session of the General Assembly devoted to disarmament can set the future course of action in the field of disarmament, arms control and related international security matters,” but noting with regret the lack of a consensus on the purposes of a 4th special session, it effectively postpones the convening of that session under the wondrously deceptive formula: “Decides, subject to the emergence of a consensus on its objectives and agenda, to convene the fourth special session.” S/2000/101, 11 Feb. 2000, para. 6 (a).

The Centennial of the First International Peace Conference: Introduction 1071 43. As a last item under the heading of disarmament and arms control in general and the small arms issue in particular, I mention the report produced by the Secretary-General for the forthcoming Millennium Summit and presented to the General Assembly on 3 April 2000 under the title We the Peoples – The Role of the United Nations in the 21st Century. In this extremely rich report, the last two sections of the Chapter on the Freedom from Fear deal with small arms and nuclear weapons, respectively. Rather than quoting at length from the text of these sections, which eloquently elaborate the points made in his earlier writings, I may just cite here the proposals by which the Secretary-General concludes his observations (with bold as in the original). On the matter of small arms: I urge Member States to take advantage of this conference to start taking serious actions that will curtail the illicit traffic in small arms. The many recent expressions of concern about small arms proliferation are a welcome sign that the importance of the issue is being recognised, but words alone do nothing to prevent the ongoing slaughter of innocent people. Dialogue is critical, but we must match the rhetoric of concern with the substance of practical action.

On nuclear weapons: To help focus attention on the risks we confront and on the opportunities we have to reduce them, I propose that consideration be given to convening a major international conference that would help to identify ways of eliminating nuclear dangers.

One can only add the wish that these proposals may lead to the result they deserve: that is, effective, practical action on the part of Member States and, indeed, of international society as a whole, including its “civil society” component. 44. The Security Council debates on “the prevention of armed conflict” and “the role of UN peacekeeping in disarmament, demobilisation and reintegration” and the Secretary-General’s report relating thereto, obviously were not limited to “disarmament and arms control” alone. Indeed, the discussions fitted at least equally well under the heading of “peaceful settlement of disputes”: not perhaps as that phrase was understood by the participants at the 1899 Hague Peace Conference but certainly in the broad sense it has meanwhile assumed. 45. The broad connotation the phrase has acquired is well illustrated by the various chapters in the Report of Messrs. Orrego Vicuña and Pinto, and consequently, in 72 73

To be held at New York from 6-8 Sept. 2000; A/RES/54/254, 23 March 2000. A/54/2000.

1072 Chapter 49 chapter II.3 of the Report on the Conclusions drafted on the basis of the discussions at The Hague and St. Petersburg sessions of the Centennial Conference. Then, in Geneva, the Solemn Appeal launched on the 12th of August 1999 on the occasion of the 50th anniversary of the Geneva Conventions, implicitly emphasises the need of peaceful settlement of disputes, when it “calls on the world to reject the idea that war is inevitable and to work tirelessly to eradicate its underlying causes.” 46. Peaceful settlement of disputes in the sense of conflict prevention was the topic of the aforementioned Security Council debate of 29 and 30 November 1999 on “the prevention of armed conflict”. With the Secretary-General urging the Council “to examine how it could make prevention a tangible part of its dayto-day work,” speakers for 38 countries, among them the five permanent members, “expressed a diverse array of views ranging from the need to address the roots of conflict, such as poverty, to the relationship between the principles of maintaining international peace and security and that of States’ sovereignty.” The inconclusive character of the debate is apparent when one compares the heading of the press release for the first day (Security Council Told Key is Effective Deterrent Action) with that for the second day: Some Speakers Urge More Decisive Action, Others Caution on Need to Respect National Sovereignty. The debate, in other words, had not brought any radical changes to the stance of the Council, nor of the UN Members. Positive points are, of course, that many speakers at least expressed dissatisfaction with the poor record of the Council in matters of conflict prevention, and that they recognised the need to continue to work for an improvement of this situation. 47. Neither the forthcoming three-day Millennium Summit nor the ensuing Millennium Assembly will be able to solve all the outstanding problems of this world. Yet they may be hoped, nay, demanded, to set in motion processes that help overcome the tremendous difficulties that prevent large segments of the world population to enjoy “freedom from want” and “freedom from fear”. 48. Even the world leaders in 1899 were already expected to bring about such miracles. They did not, but perhaps unwittingly have started processes that have 74 75 76 77

The reader is referred to that chapter (where he may notice that not all of the forwardlooking suggestions of the Rapporteurs were equally enthusiastically received). See above, paras. 20-21. Press Releases, SC/6759, 29 Nov. 1999; SC/6761, 30 Nov. 1999. The quotations are from these documents. Speaking for Japan towards the end of the first day, Mr Yukio Satoh said, as rendered in the press release: “Timely action was key to the Council’s role in conflict prevention, but in that area the record of the Council’s recent actions was not one of total success.” This statement surely deserves the “Understatement of the Year Award”.

The Centennial of the First International Peace Conference: Introduction 1073 brought us to where we are now, with a United Nations that even in its present shape is capable of much more than its Members permit it to achieve. Pending proposals for restructuring could only improve those capacities. The tools are there: they should be used. 49. The Millennium Report of the Secretary-General may be hoped to contribute to activating our present world leaders to set their shoulders under the immense task ahead. I may quote the Report again: Let the Millennium Summit signal the renewed commitment of Member States to their United Nations, by agreeing on our common vision. Let the world’s leaders prove their commitment by acting on it as soon as they return home.

50. The “immense task ahead” falls apart into innumerable detailed ones, each probably equally daunting. One of these I wish to mention in particular, that has to do as much with the peaceful settlement of disputes as with the implementation of international humanitarian and human rights law. It is, in briefest terms, the issue of “peace v. justice”. While particularly agonising in (the aftermath of ) internal armed conflicts, it may play an equally important role in relation to international armed conflicts; and, in both cases, even long after the hostilities have been terminated. 51. Armed conflicts of either variety more often than not have international repercussions: they are a matter of international concern, even to the point of involving some sort of activity on the part of the Security Council. One particular manifestation of such Security Council activity has been the establishment, in the last decade of the 20th century, of ICTY and ICTR, as measures taken under Chapter VII of the Charter and hence designed to help restore the peace in the areas involved, i.e., the former Yugoslavia and Rwanda. The peace meant here obviously is not just the absence of war: it must be understood to imply the peace of mind that comes with justice done, and seen to be done. The same idea must underlie the creation of the ICC which, once established, will have its seat at The Hague, as the “legal/judicial capital of the world”. 52. As with the ICJ, which is not given all the legal/political inter-State disputes to settle, the ICC will get to adjudge a mere fraction of the crimes of war, crimes against humanity, and acts of genocide (as well as, when the time comes, acts of aggression). And for the present, it is even more evident that the two International Criminal Tribunals were random reactions, leaving most scenes of equally ugly contravention of the basic precepts of humanity without an international criminal forum. We have to live with that, as we have been doing for a long time now.

1074 Chapter 49 53. There is however the capacity – not so much of the world’s leaders but of the national judicial systems – to deal with this peace-disturbing and conflict-aggravating criminality. In theory, it is a capacity of each and every State: first, and as a matter of course, for such acts as are done within its borders or elsewhere by its agents; and second, on the basis of the universality principle, for crimes committed no matter where, in respect of those crimes that are recognised to fall under the scope of that principle. This includes serious violations of IHL committed in international armed conflicts as well as, according to a current trend of opinion, the most serious of those crimes committed in the course of an internal armed conflict. 54. This is the theory. In practice, by far the greater part of all such armed conflictrelated criminality, of which we have witnessed such a depressingly awful amount over the past years, is never brought to trial. In Latin America, in the context of the internal conflicts that long ravaged that continent this has turned impunidad into a household word. On other continents and in other situations of armed conflict, the practice of impunity is equally widespread. 55. Impunity during the conflict, whether as a consequence of sheer impossibility to cope or as a conscious policy, is one thing. Another thing is the continuation of impunity once the hostilities are terminated and “peace building” becomes the task in hand. Here, a difficulty arises: on the one hand, justice should finally be done; on the other, yesterday’s adversaries may have to be today’s and tomorrow’s colleagues. In the internal order, this may lead to a desire for an amnesty: internationally, the same feeling may be shared. At the same time, voices clamouring for the prosecution of particular crimes may continue to be heard. 56. Both national States and the international community have wrestled with this dilemma more than once, and a variety of solutions have been applied, from the international “no amnesty” solution of ICTY and ICTR (best liked by international criminal lawyers) to the total amnesty laws in countries like Chile and Peru (much preferred, nay, demanded by the military in those countries). Somewhere in between, and with a term aptly describing the dilemma, we find the various truth and reconciliation commissions, as applied for instance in El Salvador and South Africa. While the South African case may be the most successful one and, at all events, appears to be least open to criticism, the point to note is that virtually every specific solution involves its own imperfections. 57. Thus, on 27 May 1999, ICTY announced the indictment of Slobodan Milosevic, President of the Federal Republic of Yugoslavia, together with four others, for

The Centennial of the First International Peace Conference: Introduction 1075 their role in the conflict in Kosovo (an internal conflict). Earlier on in the 1990s, when such a step was frequently speculated about in relation to the events in Bosnia, i.e., in relation to what more closely resembled a situation of international armed conflict, the question was occasionally raised whether his indictment might not impede the conclusion of a peace accord, an act for which he was deemed to be indispensable. And today, the media wonder: will he ever actually appear before the Tribunal – and if not, will this not damage its credibility? No matter how one might wish to answer these questions, the fact of the matter is that they were posed at all and thus bring out two particular features of the Yugoslav situation: one, the possible political drawbacks attending the attempted prosecution of a powerful actor in an ongoing armed conflict; two, the practical difficulty of laying one’s hands on that selfsame actor as long as he is staying in unoccupied territory. It may be emphasised, though, that the indictment of Milosevic, a functioning Head of State, demonstrates that this can be done without the step leading to violent repercussions, for instance, in the Security Council. 58. At about the same time, another high official who had been the Head of State in his country, General Pinochet, was even closer to being put on trial following his arrest in London on 24 March 1999. As with Milosevic, the individual criminal liability of Pinochet for the past events in Chile may not be overly difficult to establish. For the rest, the cases are as different as can be. The only point of interest to me here is that the acts and omissions attributable to Pinochet appeared to be covered in his own country by an amnesty, in effect, one he himself had proclaimed while still in power. Could that really be true: can a country so simply throw overboard elementary considerations of justice, in favour of – what: Peace? 59. Not only impunidad is a Latin American household work: so is amnistía, as an almost self-evident measure to smooth over the after-effects of a situation of violent conflict. No matter how self-evident, the question of the acceptability remains, not least in the light of the appalling viciousness of some of the acts allegedly committed in various Latin American countries in the last half-century. This question has come up time and time again in cases brought before the two organs established by the American Convention on Human Rights, the InterAmerican Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR). 78 79

The Prosecutor v. Milosevic et al., Indictment of 22 May 1999, Decision on review and application of consequential orders by Judge David Hunt, 24 May 1999; IT-99-37. It may be recalled that the 1919 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, almost as a matter of course had included the Heads of States among the authorities over whom the proposed Tribunal would have jurisdiction. See supra note 20.

1076 Chapter 49 60. Quite a few of these cases have to do with El Salvador. After a 12-year internal armed conflict (1980-1991, the last three years running parallel with peace negotiations) the two parties, the Government and the FMLN (Frente Farabundo Martí para la Liberación Nacional) on 16 January 1992 concluded a peace accord at Chapultepec, Mexico. As one important element in the peace accord, the parties recognised: the need to clarify and avoid any special treatment for officers of the Armed Forces, especially in cases relating to respect for human rights. To this end, the Parties will leave consideration and resolution of this point to the Truth Commission.

The mandate of the Truth Commission was to investigate “the serious acts of violence that have occurred since 1980, whose impact on society urgently requires that the truth about them be made known to the public.” Composed of three nonSalvadorans appointed by the UN Secretary-General in agreement with the parties, the Commission set to work and eventually, on 15 March 1993 released its Report titled From Madness to Hope, the Twelve-Year War in El Salvador. The Report sets forth in great detail a series of events, specifying the victims, the actual perpetrators and those intellectually responsible for the crimes. The question was: would it stop the madness; would justice be done – and how would this relate to peace? 61. To illustrate this point, no case seems better suited than that of Monsignor Romero, Archbishop of San Salvador, assassinated on 24 March 1980, at the very outset of the conflict, while he was celebrating mass in the chapel of the Hospital de la Divina Providencia. In the final phase of the procedure before the IACHR, decided by its Report of 13 April 2000, the only real point of controversy was that of amnesty. 80

81 82

83

Section 5, “preventing impunity”, of the peace accord; quoted here from an English version of the Report on the Massacre of the Jesuits in El Salvador, IACHR, No. 136/99, Case 10.488, Ignacio Ellacuría, S.J., y otros, 22 Dec. 1999, para. 59 and note 22. Ibid., para. 59 and note 23; emphasis added. Ibid., para. 60. The members of the Commission were: Belisario Betancur, former President of Colombia; Reinaldo Figueredo Planchart, former Minister of Foreign Affairs of Venezuela, and Thomas Buergenthal, former President of the InterAmerican Court of Human Rights (and, we are pleased to note, since January 2000, Judge in the ICJ). IACHR, Informe No 37/00, Caso 11.481, Monseñor Oscar Arnulfo Romero y Galdámez, El Salvador, 13 April 2000 (an English version is not yet available). The Report notes the grave impact “moral, espiritual y psicológico” the assassination had exerted on the Salvadoran society; para. 35. In a text quoted in para. 38, Dr. Pedro Nikken, Past President of the IACtHR and one-time Special Rapporteur of the UN Commission on Human Rights for El Salvador, qualifies the assassination of Monsignor Romero,

The Centennial of the First International Peace Conference: Introduction 1077 62. The facts of the case, a cold-blooded murder carried out by one Héctor Antonio Regalado on the orders of Major Roberto D’Aubuisson and Captain Alvaro Saravia, have been public knowledge at least from the time they were unravelled by the Truth Commission. It is also evident that up to the date of publication of its Report, 15 March 1993, no serious efforts had been made by the authorities to bring the authors to trial. Then, five days after the release of the Report, the Legislative Assembly of El Salvador approved a General Amnesty Law that granted “full, absolute and unconditional amnesty to all those who participated in any way in the commission, prior to 1 January, 1992, of political crimes or common crimes linked to political crimes or common crimes in which the number of persons involved is no less than twenty.” In application of the Amnesty Law, the Romero case was completely dropped. 63. The Report of the IACHR, having set forth the positions of the claimants and the Government and after an exhaustive analysis of the events in the light of the applicable provisions of the American Convention, once again (not, for sure,

84 85

86

87

88

together with the massacre of the Jesuit priests (above, note 82), as the two cases that had particularly shocked the world. – I confine myself in this Introduction to this one case, as a classic example of a serious treatment by all parties of the difficult question of amnesty as a means to overcome the after-effects of internal armed conflict. I see no reason, in particular, to go into an amnesty accord as scandalous and surrealistic as the one included in the Lomé Peace Agreement of 7 July 1999; on this, see: A.J.M. McDonald, “Sierra Leone’s Uneasy Peace: The Amnesties Granted in the Lomé Peace Agreement and the United Nations’ Dilemma,” in Humanitäres Völkerrecht (2000) p. 11 et seq. Ibid., para. 133; Decree 486, Art. 1. Ibid., para. 18. On 31 March 1993, the case against Alvaro Saravia was formally dropped. The magistrate saw no need to take a similar decision with regard to Roberto D’Aubuisson: that person had never been officially accused, and moreover, he was now dead. The case against Regalado had been effectively shelved already at an earlier stage; para. 15. Ibid., para. 19; their position, relying on Articles 4, 8, 25, 1(1) and 2 of the Convention, was that application of the Amnesty Law had rendered the Government responsible for a violation of the American Convention on Human Rights. Ibid., para. 20; the Government did not contest the allegations of fact and law of the claimants (except, obviously, for their conclusion on responsibility); instead, it asked the Commission to shelve the case, on the argument that the Amnesty Law adopted after the publication of the Report of the Truth Commission had served to ensure peace and preserve human rights. Ibid., paras. 30-55. I note two points: (1) the assassination of Monsignor Romero had not only violated the right to life recognised in Art. 4 of the Convention, but also “constituye una grave transgresión de principios básicos del derecho internacional humanitario” and in particular of Art. 3 common to the 1949 Geneva Conventions and Art. 13 of Protocol II of 1977 (paras. 66-67); (2) irrespective of direct participation by State agents, the latter “es en todo caso internacionalmente responsible por actos violatorios de los derechos humanos perpetrados por individuos o grupos de

1078 Chapter 49 for the first time) explains its doctrine on the (in-)compatibility of the Amnesty Law with that Convention. Its central point is that application of amnesty laws that impede access to justice in cases of serious violations of human rights renders ineffective the obligation of States Parties to the Convention to respect the rights and freedoms recognised therein, and to guarantee to every person subject to its jurisdiction the free and full exercise of his rights without discrimination. 64. Applying its doctrine to the case in hand, the IACHR finds, first, that the application given to the General Amnesty Law of 1993 is incompatible with the international obligations of El Salvador in that it renders ineffective the right to judicial guarantees and judicial protection established in the Convention, as well as with its general obligation to respect and ensure respect for the rights established in that instrument. 65. To this, it adds another argument: by application of the Amnesty Law, the State has violated the “right to the truth”; a right not just for the victim’s relatives, but for the community as a whole. This is not limited to a right to know the facts but is part of the right to reparation for human rights violations, both by way of satisfaction and as a guarantee that the same will not happen again. Seen under this light, the right to the truth cannot be regarded as having already been fulfilled by the work, no matter how important, of the Truth Commission: its functions were no substitute for the judicial process as a method to arrive at the truth.

89

90 91 92

93

individuos organizados, tales como los escuadrones de la muerte, que actuán con el beneplácito, acquiescencia, tolerancia o incluso colaboración de sus fuerzas de siguridad.” On the latter point, see also Zegveld, op. cit. note 44, p. 61 et seq. Ibid., paras. 126-130. The IACHR finds support for its “doctrine and practice” both in the conclusions on impunity arrived at by Louis Joinet in a report produced as Special Rapporteur of the UN Commission on Human Rights (E/CN/4/Sub.2/1997/20/ Rev.1, 2 Oct. 1997), and in a Judgement of the IACtHR holding that a State cannot invoke dispositions of its internal legal order in order to divest itself of its international obligations (Caso Loayza Tamayo, Reparaciones, 27 Nov. 1998; text quoted by the Commission: para. 168). Ibid., para. 131; the State hence is deemed to have violated Articles 2, 8 and 25 of the Convention, in conjunction with Article 1(1). Ibid., para. 142 et seq. Ibid., para. 148. The IACHR writes: “El derecho de una sociedad a conocer íntegramente su pasado no sólo se erige como un modo de reparación y esclarecimiento de los hechos ocurridos, sino que tiene el objeto de prevenir futuras violaciones.” Ibid., para. 149: “La CIDH considera que, pesa a la importancia que tuvo la Comisión de la Verdad para establecer los hechos relacionados con las violaciones más graves y para promover la reconciliación nacional, las funciones desempeñadas por ella no sustituyen el proceso judicial como método para llegar a la verdad. El valor de las Comisiones de la Verdad es que su creación no está basada en la premisa de que no habrá

The Centennial of the First International Peace Conference: Introduction 1079 66. The conclusion of the IACHR follows logically: by applying the Amnesty Law to the case of Monsignor Romero, the State has violated the right to justice as well as its procedural obligations under the Convention. It accordingly recommends that the State stages a complete, impartial and effective judicial procedure to identify, adjudge and punish all the material and intellectual actors of the violations established in the Report; sets right all the consequences of these violations, and adjust its internal legislation to the American Convention, so that the Amnesty Law is put out of effect. 67. On the latter point, the Government replies that the IACHR does not appear to understand fully the grounds that underlay the Amnesty Law, which was to carry on with the peace process and attain national reconciliation, in a society badly traumatised by the violence of the conflict. Viewed thus, the Amnesty Law was not merely based in law but had been a necessary response on the part of the national conglomerate. 68. Again, therefore the question: what is to prevail: peace, or justice? The IACHR restates its case one last time: peace is of the utmost importance in a country like El Salvador that has suffered the effects of armed violence. Yet, the peace of society as a whole cannot stand in the way of justice, which includes the investigation and punishment of individual human rights violations. 69. Peace, thus, concerns the situation in a country as a whole: justice is a matter of the individual cases which need to be set right – in the interests of society as well. Neither one should prevail, both should be honoured fully. That peace without justice can leave wounds which refuse to heal, may be demonstrated by means

94 95

96

juicios, sino en que constituyen un paso en el sentido de la restauración de la verdad y, oportunamente, de la justicia.” (emphasis added) Ibid., paras. 157-159. Ibid., para. 161. The last sentence reads: “… la Ley de Amnistía de 1993, no sólo está basada en Derecho, sino que se dio como respuesta necesitada por parte del conglomerado nacional.” Ibid., para. 162, referring back to para. 155, where the IACHR emphasises that “Las consideraciones de carácter general sobre la situación en un Estado no pueden de manera alguna ser utilizadas para impedir una decisión de la Comisión a un caso individual.” (emphasis added). – It may be noted that in this whole discussion no role was played by Art. 6(5) of Protocol II: the famous provision prescribing that at the end of hostilities, “the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict …” this while the IACHR had explicitly qualified the assassination as a violation of Art. 3 common to the Geneva Conventions and Art. 13 of Protocol II (see note 86). It may therefore be clear that the Romero case was not just a matter of any odd human rights violation, in respect of which the statement of the IACHR might be regarded as a bit too bland.

1080 Chapter 49 of a totally different episode, dating back to the Second World War. During the Japanese occupation of the Philippines, local women and girls were often used by the occupying forces as “comfort women”. Many of them have needed years, if not decades, to learn to cope with this traumatic experience. Cases are now pending before the Japanese courts that aim to get satisfaction for still surviving victims of these reprehensible acts. For the women, money is not the primary goal of their complaints: it is the moral satisfaction of finally seeing a judicial procedure handling their misery. 70. Nor is victory the goal of the Japanese lawyers who are pleading the women’s cases: their focus is on keeping the population conscious of what has been done half a century ago, that it was not right, and that society should openly and officially recognise this blemish on its historical record. They may not win the cases: they simply have wanted to make their point, in a society that is at peace but may find it difficult to reconcile this situation with the needs of justice that arise out of its past. 71. Even these few examples of the difficulties inherent in the struggle of peace vs. justice, or impunity and amnesty, suffice to show that it is an issue of daunting proportions, apt to haunt society long after a conflict, international or internal, is ostensibly over. And it is just one issue out of the many that may be gleaned from the reports of the three Rapporteurs and the other documents in this volume, and that are implied as well in the Millennium appeal of the Secretary-General. The participants at the Hague Peace Conference of 1899 can at best have been dimly aware of the immense difficulties that lay ahead. A century later, those who celebrated the Peace Conference’s Centennial and who now are preparing for the Millennium Summit, both authorities and civil society, cannot fail to realise the enormity of the challenges they are facing. May they assume their responsibilities, with wisdom and courage.

97 98

See: H. Fujita, I. Suzuki and K. Nagano (eds.), War and the Rights of Individuals: Renaissance of Individual Compensation (1999). See above, para. 51.

Chapter 50 Motion of Thanks*

Your Royal Highness, Ladies and Gentlemen: Speaking also on behalf of my co-recipients of the Henry Dunant Medal, I should like to express our profound gratitude for the honour you have done us. I can assure you that we are mighty proud at having been awarded this prestigious medal.

Ladies and Gentlemen, Many of you will remember the 12th of August, 1999, the day we celebrated here in Geneva the fiftieth anniversary of the Conventions of 1949. A festive occasion it certainly was. At the same time, speakers reminded us of the rising tide of disrespect for the Conventions and for international humanitarian law in general. Armed conflicts such as the ones in the former Yugoslavia, in Rwanda, or in the Sudan, had become the scene of horrific crimes, including systematic attacks on civilians and other protected persons and objects. Yet, worse was to come. On the 11th of September, 2001, Al Qaeda used civilian aircraft to attack the Twin Towers in New York and the Pentagon in Washington. Members of that terrorist network have since carried out a series of vicious attacks on a variety of targets. I mention only three recent attacks: the 19th of August of this year, on the UN headquarters in Baghdad; the 27th of October, on the ICRC headquarters in the same town, and the 15th of this month, on two synagogues in Istanbul. These ruthless attacks in particular demonstrated that to the attackers, nothing has remained sacred. In this meeting I may be forgiven for paying special attention to the attack on the ICRC headquarters in Baghdad. Directed against a building protected by the red cross, the attack was also intended to strike the ICRC itself: the car bomb selected for this occasion was an ambulance marked with the ICRC emblem. *

Text spoken on the occasion of the rewarding of the Henry Dunant medal by the International Red Cross and Red Crescent Movement, Geneva, 30 Nov. 2003. The speaker and three other persons had received the medal from the hands of H.R.H. Princess Margriet of the Netherlands, President of the Standing Commission of the Movement.

1082 Chapter 50 Ladies and Gentlemen, In days long past, ambulances enjoyed no protection at all. The horse-drawn vehicles used at the time to transport wounded soldiers were regularly attacked by the enemy. To bring this practice to an end, the first Geneva Convention, adopted in 1864 as a result of the efforts of Henry Dunant and his colleagues, provided for the protection of ambulances and their personnel. The Convention also introduced the “red cross on a white ground” as a distinctive emblem. And, oh yes, it mentioned in passing that “the wounded in armies in the field” had to be “collected and cared for.” Once established, the red cross proved an effective device for the protection of objects such as ambulances and their personnel. In the Lebanon in the 1970s and ’80s, when everybody was fighting against everybody, the ambulances of the national society could move around unhampered. One did not attack the red cross or the red crescent, nor, indeed, the red star of David. The other way round, the persons so protected relied on the emblem, not on weapons. With the general deterioration in respect for international humanitarian law that marked the recent decades the red cross has not gone unscathed. With disturbing regularity, we began to hear about violence against ICRC delegates or personnel of national societies. While these were deplorable incidents, one could still hope that they were isolated incidents. The attack on the ICRC headquarters appears to be of a different order. Flinging the red cross in the face of the ICRC amounts to a demonstration of utter disregard for the values and principles it stands for, not least, the principle of neutrality. The attack literally constitutes a crime against humanity. Those who one way or another are responsible for the act should not go unpunished. However, of greater interest here and now is the side of the victims: those killed or wounded in the explosion in the first place, but then also the ICRC itself. In the past, the ICRC has more than once been confronted with situations where it had to display its resilience in the face of serious setbacks, as well as its capacity to learn from experience. We hope and trust that this time too, our ICRC (if I may say so) will overcome the traumatic experience, perhaps a sadder but, if at all possible, an even wiser person than before. The attack of the 27th of October may have been directed against the presence of the ICRC in Iraq, but its shock wave must have been felt throughout the Red Cross and Red Crescent world. In this respect, we are aware that no two national societies are identical, and each Red Cross or Red Crescent society is susceptible to the influences of its domestic environment. What binds the societies together is, at first sight, their membership of the Federation, but on a deeper and much more important level, the common values they share. Therefore, at a critical juncture like the present, with international society in turmoil, the principles of the Movement are all the more important, and so is the need to respect and protect each single one of these principles.

Motion of Thanks 1083 Your Royal Highness, Ladies and Gentlemen, The 27th International Red Cross and Red Crescent Conference had chosen as its motto “the power of humanity”. We have since become painfully aware of the vulnerability of humanity. Permit me therefore to conclude our expression of gratitude with the wish that in spite of its vulnerability, humanity, as the most fundamental principle of the International Red Cross and Red Crescent Movement, may prevail.

Index

A Aggression definition, 940 unlawful, defence against, 513-519 unlawful wars of, 514 wars of, 92 Air medical transport, issue of, 63-65 warfare in, 23 airmen in distress, position of, 51-52 Aircraft bombardment. See Bombardment civil crew as noncombatant persons, 563 crew, elimination of, 268 parachuting from, protection on, 267-271, 293 American Convention on Human Rights adoption of, 576 amnesties, issue of, 1075-1079 Inter-American Commission on Human Rights, ambiguity as to, 577 organ of, as, 894 Inter-American Court of Human Rights, jurisdiction of, 900 interpretation of rules of, 896-897 optional clause, 913 parties to, 591-592 Peru, ratification by, 907 sovereign states, relationship with, 916 Armaments. See also Weapons absolute ceiling, 12-14 purposes of, 6-8 Armed conflict applicable law of, 321 behaviour of combatants, rules for, 51-52 Carnegie Endowment conference, 36

Chechnya. See Chechnya civilian medical personnel, protection of, 39-42, 49. See also Medical neutrality classification, 137 colonial and racist domination, against, 121, 129 community institutions, lack of, 759 criminality, 1074 cultural property, protection of. See Cultural property customary law of, application, 324 notion of, 321 decision-makers, 17 definition, 16, 470, 953-954 development of law, 535 disaster, as, 524, 527, 531 dissemination of law, 136 encroachments causing damage or injury, claims arising from, 642 First World War, Commission on the Responsibility of the Authorities of War and on Enforcement of Penalties, 934-935 Germany’s policy of aggression, 934 Geneva Conventions, introduction of term to, 1055 goals of, 16-17 high tribunal, proposal for, 934-935 human rights law, continued application of, 71 impact of, 144-145 Resolutions, 121 ICRC principles, 35 impunity during, 1074 insurgents in, 498 internal, bombardment, 442-443

1086 Index Colombia, in, 322-323 combatants and civilians, distinguishing, 322 decision as to, 96 definition, 95 determining character of, 865 existing law, 1949 and 1977, 1017-1021 Geneva Conventions application of, 282 requirement to implement, 680 hostage taking, 323 humanitarian law, 516-517 humanitarian principles governing, 678 inequality of parties to, 18-19 international humanitarian rules governing, 864 International Tribunal for the Former Yugoslavia, application of Statute of, 324 involvement of another State, effect of, 926-928 level of violence in, 497 nature of, 322 outside intervention, 19 parties to, 322 Protocol II, application of, 863-864 reprisals, 787-790 special agreements, 878, 890 Stockholm Conference, discussion in, 679 treaty law, vacuum in, 789 unrest, situations of, 497-498 war crimes in situations of, 944 See also non-international, below international, 20 development of law, 516 international incidents, and, 472-473 liberation wars as, 518 national liberation, wars of, 285 non-international becoming, 471-472 non-international distinguished, 470471, 597 Second World War as, 917 Taliban and Al Qaeda, attack on, 923 international and non-international, 16-19 no difference in standards, argument for, 137

international humanitarian law applicable in. See International humanitarian law international repercussions, 1073 law of, codification and development, 33 customary, 25 Geneva Conventions. See Geneva Conventions lack of respect for, 1057 multilateral treaties, 25-26 scope of, 26 legal status of parties, 18 lesser forms of violence distinguished, 16 national liberation, wars of, 20 negative factors, 597 neutral States. 26 non-international, basis standards of humanity, 498 capital punishment, 45 civil war, 94 definition, 93-94 problem of, 43 Draft Protocol II. See Geneva Conventions Protocol II hostilities, involvement in, 469-470 humanitarian law, 516-517 international, assimilation with, 93 becoming, 284-285, 471-472 distinguished, 470-471, 597 International Committee of the Red Cross conference, 42-46 mere tense situations, and, 469 present state of law, unsatisfactory, 42 prisoners of war, 44-45 Protocol dealing with, attitude to, 286 Protocol, possible contents of, 44 supervision of rules, 52 types of situation, 46 customary international law, application of. See Customary international law notions not applying, 143-144 non-nuclear, 34-35 norm-setting, 532-533 parties, relations between, 26 peace building, 1074 penal sanctions, 53

Index 1087 protection of civilian population, consideration of, 48-50 qualifying situations as, 17 recognition of series of events as, 499 reprisals, 53 Respect for Human Rights report on, 57 UN resolution, 35 rules and principles of law, model instruments, rules of treaty law as, 622-625 obligation to implement, 621 practice and law, 622 reality of, 622 scope of, 498 Second World War, bombardment in, 438-440 comfort women, reparation to, 1080 crimes, punishment of, 935-936. See also War crimes declarations of war, 15-16 international conflict, as, 917 self-determination, wars of, 20 special categories of civilians, 49-50 Standard Minimum Rules, proposal for, 47 States as actors of, 136 supervision of rules, 52 term of art, as, 524 treaties, use of term in, 525-526 types of, 525, 953-954 victims. See Victims violation of law, right of persons in occupied territory to claim compensation, 638-640 war and neutrality, law of, 275 war on terror, 928-929 warfare. See Warfare Armed forces commanders, duty of, 603 definition of, 198, 291-292, 559-560 discipline, system of, 602-605 distinctive emblems, 204, 292 failure to act, 603 financial liability for damage caused by, 934 hors de combat, being, 252, 266-267, 293 instructions for,

application of humanitarian law, for, 599-602 Commander’s Handbook. See Commander’s Handbook on the Law of Naval Operations Hague Regulations, 623-624 international law, applicable rules of, 622-625 international rules, translation of, 625629 Lieber Instructions, 625 rules of engagement, 628 United States, of, 622-623 organization, 113 organized and subject to discipline, to be, 197-198 regular, conduct of, 321 Second World War crimes, punishment of, 935-936. See also War crimes single standard applying to, 198 specified conditions, 198 spies, treated as, 208-209 United Nations, 8-9 warfare, methods and means of. See Warfare Assassination war, in, 331-332 Asylum breaches of Geneva Convention, to avoid, 666-667

B Bombardment aerial, aircraft, development of, 435 Declaration of Brussels, prohibition in, 435 developments in, 436-438 effects of, 462 Second World War, in, 438-440 terror, attacks with purpose of spreading, 444-448, 455-461 undefended towns, of, 435 civilian population, protection of, 441-443 Conference of Brussels, 1874, 432-434 conferences, 432 criticism of, 432 enforcement of rules, 463

1088 Index Hague Peace Conferences, 434-438 history of, 431 implementation of rules, 463 internal armed conflict, in, 442-443 naval, Hague Convention, 436 Protocols, provisions of, 440-449 regulation of, 462 Sarajevo, of, civilians and combatants distinguished, 453-454 civilians, attacks on, 451-454 ICTY, judgement of, 449-461 ICTY Statute, acts within, 450-451 outcome of case, 459-461 siege, 449 terror, attacks with purpose of spreading, 455-461 Second World War, in, 438-440 undefended towns, of, 435 violation of rules, 463 warfare, as method of, 432 Booby-traps civilian population, protection of, 303 Bullets dum-dum, use of, 138, 364-367, 371 explosive, 258, 377-380

C Capital punishment non-international conflict, in, 45 Chechen Republic of Ickeria Geneva Conventions and Protocol I, claim to be party to, 919 independent sovereign State, declared to be, 919 Chechnya armed conflict in, international, recognition as, 918-919 nature of, 917-918 self-determination, as war of, 918 Russian dominance, coming under, 917 Chemical warfare customary prohibition, 140 Civil defence armed forces members, participation by, 305 definition and scope, 245 Dutch attitude to, 303-304

function, definition, 303-304 organizations, diversity of, 245 tasks, 245 Civil defence organizations protection of, 81 Civil defence personnel protection of, 81-82 Civil war. See Armed conflict Civilian objectives military objectives distinguished, 213-214 Civilian population acceptable losses among, 219 advance warning of attacks affecting, 222 armed resistance by, 194 basic principles for protection of, 142 Commander’s Handbook. See Commander’s Handbook on the Law of Naval Operations cultural objects, protection of, 423-428 defended place, in, 462 definition, 72-73, 108, 212 direct participation in hostilities, notion of, 550-551 distinction, principle of, 405-409, 415-416 Draft Protocols, provisions of, 107-108 guerilla warfare, threat of, 703 Gulf War 1980-1988, attacks in, 405-409 human rights, continued application of, 71 immunity from dangers of war, 131 indiscriminate attacks, 218-225 indiscriminate warfare, protection from dangers of, 148 internal armed conflict, in, 246-249 law of warfare, protection under, 142-144 levee en masse, 551 Martens clause, 194 military objectives, shielding, 224 military operations, reduction of risk from, 223 notion of, 548-551 object of attack, not, 543-545 objects indispensable to survival of, 76 prohibited attacks on, 508 protection of, 71-73 absolute immunity, 240, 297 armed conflict, in and from, 1058, 1067 bombardment, from, 441-443

Index 1089 booby-traps, from, 303 both sides, by, 223 civil defence, 245 collateral injury, from, 217-225 consideration of, 48-50 cultural objects and places of worship, 226-228 customary law, by, 951-952 dams or dykes, of, 235-237, 297-299 dangers arising from military operations, from, 215, 247, 505 dangers of hostilities, from, 300 demilitarized zones, 243-244 direct attack, from, 448 direct attacks, from, 215-217 discontinuance of, 235-236 Dutch attitude to, 296-299 effective protection from attack, 240 effects of hostilities, against, 507, 540543 Fourth Convention, under, 552 general, 110, 215-225, 441-443, 448 hardships of war, from, 280 hospitals, of, 235, 240 incendiary weapons, from, 302-303 inhabited places, defence of, 241-242 Kupreskic judgement, 820-832 mines, from, 303 natural environment, of, 226, 231-234 nuclear power stations, of, 235-237 object and purpose of, 777 objects indispensable to survival of civilian population, to, 226, 228-231 oil rigs, petroleum storage facilities and oil refineries, of, 238-239 protected objects, scope of, 239 Protocol I, 107-111 Protocol II, rules in, 790 reprisals, prohibited, 216-217 reservations, 776-780 respect, and, rules for, 211-212, 824 safety zones and localities, 240 Sarajevo, attacks in, 449-461 special, 239-246, 553 specific objects, of, 226-239 terrorism, from, 216-217, 505

US Commander’s Handbook on the Law of Naval Operations, 546-548 warfare, in, 22 works and installations containing dangerous forces, of, 226, 234-239, 297-299 Protocols, scope of, 248-249 relief actions, 247-248 relief for, 83, 246 reprisals. See Reprisals respect for, 210 risks to, 154 rules relating to protection of, class of, 754 scope of definition, 73 sparing, 546 starvation, forbidding, 83 terror, attacks with purpose of spreading among, 444-448, 455-461 war effort, contribution to, 573 Civilians children, special protection for, 80-81 civil defence organizations and personnel, protection of, 81-82 combatants distinguished, arms, carrying, 202, 205 dividing line, 193-196 exemption, proposed, 201 failure of, 561 internal conflict, in, 322 means of, 453 nature of hostilities, 201-202 obligation of, 560 opposing views, 194 Protocol I, 190 Protocol II, 192 requirement for, 199-205 time and manner of, 199-205 Convention, 295 draft, consideration of, 687 draft preamble, 680 direct attack on, 72 disrespect for, 1059 Draft Rules for the Limitation of Dangers incurred by the Civilian Population in Time of War, 34, 141 Draft Rules for the Protection of the Civilian Population from the Dangers of Indiscriminate Warfare, 34, 140-141

1090 Index Hague, law of, 66 human rights, 294-295 medical personnel, protection of, 39-42, 49 non-military objects, prohibited attacks on, 109 notion of, 548-551 objects of character of, 74 Draft Protocol I, provisions of, 108 participants in hostilities distinguished, 48 presumption of status, 214-215 protected persons, as, 1005-1010 protection of. See Civilian population Protocol I, rules in, 190-209 reprisals against. See Reprisals retaliation against, 742 sparing of, 333 special categories of, 49-50 special protection, 80-81 systematic terrorism against, 456 terror attacks on, 75 war industry, workers in, 73 warnings of attack to, 78 wounded and sick, protection of, 39-42, 66-83 Colombia dissident groups, special agreements with, 890 Geneva Conventions Protocol I, Constitutional Court judgement, 870-871 Geneva Conventions Protocol II, Constitutional Court scrutiny of, amnesty clause, 881-882 chapter by chapter analysis, 880 civilians, position of, 875 conclusions, 882, 885-886 Constitution, link with, 875 government voices, 872-873 judgement, 876-883 military obedience, issue of, 881 non-government voices, 873-876 prisoner of war status, 882 request for, 871 sovereignty, relations with, 878 Geneva Conventions Protocols, change in position to, 869-884

Inter-American Court of Human Rights, case before. See Inter-American Court of Human Rights International Humanitarian Fact-Finding Commission, official recognition of competence of, 883-884 international humanitarian law, implementation of, 878-879, 890 jurisdiction, distribution of, 887 Ombudsman, complaints to, 887 Protocols, change in attitude to, 885 superior orders, issue of, 888-890 Combatants behaviour of, rules for, 51-52 civilians distinguished, arms, carrying, 202, 205 dividing line, 193-196 exemption, proposed, 201 failure of, 561 internal conflict, in, 322 means of, 453 nature of hostilities, 201-202 obligation of, 560 opposing views, 194 Protocol I, 190 Protocol II, 192 requirement for, 199-205 time and manner of, 199-205 conditions for status as, 204 distress, in, 556-558 enemy. See Enemy combatants existing law, clarification of, 112 freedom fighters, 195-196 guerilla, status of, 47-48 guerilla. See Guerilla fighters Hague, law of, 66-67 ICRC Conference of Government Experts Commissions, examination by, 51-52, 66-83 illegal, 560-561 independent missions, 112 irregular, meaning, 474 non-international armed conflicts, in, 139-140 treatment in, 106 protection of, 154 qualification as, 288 regular armies as, 193-194

Index 1091 resistance movements, members of, 194 unlawful, American jurisprudence, 924 Guantanamo Bay, in, 923-925 visibility to adversary, 202-204 Commander’s Handbook on the Law of Naval Operations armed conflict, reference to, 626 civilian population, direct participation in hostilities, notion of, 550-551 effects of hostilities, general protection against, 540-543 enemy society, as, 565 general protection, 546-548 levee en masse, 551 lookouts, etc, acting as, 550 notions of, 548-551 object of attack, not, 543-545 reprisals against, 544 sparing, 546 war effort, contribution to, 573 guerillas, reference to, 560 hospital ships, scant attention to, 566 illegal combatants, 560-561 law of armed conflict, part relating to, 536 Law of Naval Warfare, scope of Part on, 627 naval targeting, law of, 547 noncombatant persons, adequacy of term, 565 armed conflict, reference to, 539-540 chaplains, 553-556 Chapter on, brevity of, 536 civilian population, 540-553 distress, combatants in, 556-558 journalists on dangerous missions, 563 meaning of term, 536-537 medical personnel, 553-556 merchant marine and civil aircraft crew, 563 persons accompanying armed forces, 562 prisoners of war, 558-562 protective signs and identification, 563-564 scope of provisions, 539-540 treaties, 537-539

war correspondents, 562 NRA Code compared, 626-627 persons on land, position of, 564 publication of, 535, 567 reprisals, 544 scope of, 565-566 significance of, 535 territorial scope of application, 540 Conference of Government Experts on Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts first session, airmen in distress, position of, 51-52 behaviour of combatants, rules for, 51-52 Commission I, 39-42 Commission II, 42-48 Commission III, 48-52 Commission IV, 52-54 conclusion, 54-55 convening, 36-37 debate, character of, 39 documentation, 37 existing laws, measures to reinforce, 52-54 guerilla warfare, consideration of, 46-48 matters neglected by, 57 non-international conflicts, consideration of, 42-46 organization of work, 38 parties to, 37 President, 39 procedure, 38 protection of civilian population, consideration of, 48-50 protection of journalists, consideration of, 50-51 solutions, 54 wars of liberation, consideration of, 46 wounded and sick and civilian medical personnel, protection of, 39-42 zone and terror bombardment, use of, 50 second session, activities in preparation for, 59 arms limitation, reticence as to, 67 attacks on military objectives, precautionary measures against, 77-78

1092 Index basis of discussions, 60 civilian medical establishments and units, position of, 62 civilian population, discussion on protection of, 71-73 relief for, 83 combatants and civilian populations, consideration of, 66-83 Commission I, 61-65 Commission II, 93-97 Commission III, 66-83 Commission IV, 83-93 conclusions, 97-99 consultations before, 59 delegations, 60 Disarmament and Peace, Draft Resolution concerning, 91-93 draft Protocols, work on 61 Drafting Committee, 84 enemies, consideration of treatment of, 69-70 general debate, 61 guerilla fighters, position of, 70 humanitarian bodies, position of, 65 implementation of Geneva Conventions and Draft Protocol, discussion of, 83-93 infractions by omission, discussion of, 87 localities and objects under special protection, topic of, 78-80 medical air transport, issue of, 63-65 medical duties, principles of protection, 63 national Red Cross societies, position of, 65 non-international armed conflicts, discussion of Protocol, 61 examination of Draft Protocol, 93-97 objects of civilian character, definition of, 74 penal sanctions, discussion of, 87-88 perfidy, consideration of, 69 President, 61 Red Cross emblem, use of, 62 reprisals, discussion of, 88-89 responsibility of authorities, discussion of, 87

Rules of Procedure, 61 special protection, objects of, 80-82 superior orders, issue of, 87-88 weapons, debate on, 67-69, 91-92 wounded, sick and shipwrecked persons, protection of, 61-65 Conference of Government Experts on Use of Conventional Weapons First Session, agenda, 163, 383 blast and fragmentation weapons, 166 chairman, 369 convening, 148 delayed-action weapons, 167 dictates of public conscience debate, 387-388 evaluation and perspective, 168-170 future weapons, 167-168 history of, 148-156 incendiary weapons debate, 164-165, 388-390 indiscriminateness debate, 160-161, 387 legal aspects, 158-163 legal criteria debate, 158, 384-386 liberation movements, admission of, 158 mandate, 154 numbers attending, 158 participants, 157, 383 perfidy, 161 plenary sessions, 383 procedure and politics, 156-158 proposal to convene, 152 protection of combatants, debate on, 154 public conscience, dictates of, 161-163 questions, generating, 170 rapporteurs, 156 report, 157-158 series of conferences, in, 147 small-calibre projectiles, 165-166, 169 starting point, 154 survey of discussions, 163 technical aspects, 163-168 treacherous weapons, 167 unnecessary suffering, criterion of, 159 debate on, 369-371, 386-387 Second Session, agenda, 172-173

Index 1093 blast and fragmentation weapons, 176-177 categories of weapons discussed, 173 conclusions, 179 debate at, 390 general and legal questions, sub-group on, 177-178 general working group, debate in, 171 incendiary weapons, 174 legal problems, 179 mines and booby=traps, progress on, 174-175 need for, 171 organizations, contribution of, 172 participation, 172 political points of view, 172 proposals, 173 report, 390 reprisal, right of, 178 small-calibre projectiles, 175-176 terms of reference, 171 Western countries, proposals of, 173-174 adoption of, 33-34 Cultural property Afghanistan, destruction in, 427 former Yugoslavia, destruction in, 426427 Geneva Convention Protocols, protection under, 423-426 Hague Convention for the Protection of, 421 dissemination, 606 ICRC Plan of Action, 428-429 international humanitarian law, protection within framework of, 421-430 International Tribunal for the Former Yugoslavia, jurisdiction of, 426-427 naval bombardment, protection in event of, 422-423 protection of, 226-228 use of term, 422 Customary international law armed conflict, of, application, 324 notion of, 321 civilised opinion, on basis of, 1063 Gulf War 1980-1988, applicable to, 401

non-international armed conflicts, applicability in, American Civil War, 137-138 basic precepts, 142-144 combatants, protection of, 139-140 common code of conduct, recognition of, 140 first Hague Peace Conference, discussion in, 138 Geneva Diplomatic Conferences, discussion in, 140 Geneva Gas Protocol, 139 ICRC Draft Rules, 140-141 international conflicts, and, 137 Lieber Code, 137-138 notions not applying, 143-144 thesis, 134 perfidy, prohibition 264 Protocol II, status of, 134 rules of warfare as, 423 traditional view of, 135

D Darfur UN Commission for investigating, 856857 Death penalty Draft Protocols, provisions of, 106-107 occupied territory, in, 291 Decolonization wars of national liberation, 10 Demilitarized zones civilized zone, as, 245 conditions for, 243-244 consensual character of, 244 location, 244 protection of, 243 Deportation Fourth Geneva Convention, relief under, 666-667 Diplomatic Conference of Geneva 1949 armed conflict law, codification and development, 33 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts definitive closure of, 861

1094 Index Final Act, 181 First Session, Committees, 127, 181-182 conventional weapons, Ad Hoc Committee, 126, 131 issue of, 126 general debate, 127 invitations to participate, 122, 124-125 liberation movements, admission of, 125 participants, 181 plenary meetings, 124 political controversy, 123-124 preparations for, 101-123 procedural questions, 124 regional intergovernmental organizations, recognition of, 125-126 scope of Draft Protocol I, discussion of, 127-130 success or failure of, 131 fourth session, 739 host of, 281 International Fact-Finding Commission. See International Fact-Finding Commission; International Humanitarian Fact-Finding Commission main Committees, 739 reprisals, problem of. See Reprisals sessions of, 863 third sessions, 739 Diplomatic protection scope of, 1023 Disarmament qualitative, 155 Disaster agent, 526 armed conflict as, 524, 527, 531 man-made, 524 meaning, 524 natural, 530 relativity of term, 526-527 relief and development aid, 530 situation qualified as, 523-527 society affected by, 526, 530 victims. See Victims

E El Salvador peace accord, amnesty in, 1076-1079

Emblems Dutch attitude to, 303-307 recognized, 266 Red Cross, Red Crescent and Red Lion, 305-307, 998-1000, 1003-1004, 1010, 1019, 1024, 1032 Red Shield of David, 306-307 working party on, 307 Enemies treatment of, draft ICRC Articles, 69-70 Enemy combatants aliens, classification of, 588-589 Guantanamo Bay, in, aliens, classification of, 588-589 detention at, 575 habeas corpus cases, 585-590 judicial notice of status, 588 location of camp, 589 precautionary measures, request by IACHR, 575-585 US President, discretion of, 575-592 United States, of, precautionary measures, request by IACHR, 575-585 status of detainees, 575 US President, discretion of, 575-592 Environmental damage act of war, as side effect of, 963 definition, 962 impartiality and non-participation, and, 963-972 territory of neutral State, to, 962-963 European Court of Human Rights Bankovic case, 922-923

G Gas Protocol, 139, 342 reprisals, 785-786, 791 war and police purposes, use for, 139 Geneva Conventions abuses and infractions, repression of, 313-316 armed conflict, general principles applicable, 184 introduction of term, 1055 breaches, investigation of, 309 civil war, application in, 282

Index 1095 common Article 1, adoption of, 685-686 all circumstances, respect in, 698-699 binding treaty provision, attempt to interpret as, 697 cause and effect, linking, 696 civil war, effect in, 672-675 customary law character, 724 Diplomatic Conference of 1949, preparations for, 673-682 drafting history, 668-692 ensuring respect, 695-696 evaluation, 699-700 Fourth Convention, 700-701 Geneva Diplomatic Conference, 682686, 691-692 humanitarian intervention, obligation of, 722-723 humanitarian principles, respect for, 678, 685 ICRC Commentary, 676-677, 693-703 International Court of Justice, judgement of, 721-722 international law personalities, views of, 725-726 legal obligation, expression of, 723-724 military occupation, as to, 723-724 negotiations, 691-692 non-belligerent States, active role of, 697-698 original motives, 679 preamble, connection with, 683-684 primary legal obligation arising, 726-727 Protocol I, incorporation in, 710-719 Protocol II, no incorporation in, 713 reach of duty, 724-725 respect for Conventions,, undertaking of States, 665 respect, nature of, 693-695 Second Convention, 701 shape of, 671 Sick and Wounded Convention, Commentary to, 671-672 situation of war, limited to, 671-672 Stockholm Conference, lack of comment in, 678-679 substitution, proposal for, 711 Third Convention, 701, 719

unilateral obligation in, 711 universal application, ensuring, 677 written text, emergence in, 673 common Article 3, basic precepts in, 862 persons taking no part in hostilities, reference to, 952 scope of, 951 treaty law, as, 951 comprehensive body of law, as, 994 Conference of 1863, 997-999 Diplomatic Conference of 1949, preparations for, 673-682 diplomatic conference, proposal for, 97-98 dissemination, 605-606 draft preamble, common Article 1, connection with, 683-684 debate on omission of, 689 drafting, 681 function of, 69` Geneva Diplomatic Conference, 682691 human rights terms, in, 681 rise and fall of, 686-691 war, situation defined as, 681-682 working party, 688-690 Draft Protocol I. See Geneva Conventions Protocol I Draft Protocol II. See Geneva Conventions Protocol II Draft Protocols, Drafting Committee, 84 general and final provisions, 84 fiftieth anniversary, 1057-1058 first, 26 fundamental general principles of humanitarian law, identity of content, 722 grave breaches, 314-317 punishment of, 939-940, 942 universality principle, 947-948, 1056 ICRC Commentaries, common Article 1, on, 693-703 conclusions, 702 Fourth Convention, 700-701 practical value of, 693

1096 Index Protocols, on, 713-720 Second Convention, 701 Third Convention, 701, 719 writing of, 692 implementation, 83-93 individual responsibility, 312-319 international legal obligation of contracting States, 665 knowledge, dissemination of, 54, 90-91 law incorporated in, 27 medical neutrality, codification, 999-1001 non-contracting belligerent, effect of participation by, 670 non-international armed conflict, definition, 93-94 rules applicable in, 994-995 penal sanctions, 87-88 Preliminary Provisions, 687 protected persons, 503-504 civilians as, 1005-1010 classes of, 994 medical units, 1006 occupied territory, in, 1008 Red Cross societies, application to, 1009-1010 specific localities, in, 1007 status and treatment of, 1008 term of art, as, 1006 territory of party to conflict, in, 1008 vulnerable persons, 1006 wounded and sick, 1006 Protecting Powers system, 84-85 redrafting, proposals for, 675-676 reinforcement of implementation, questionnaire concerning, 59 respect for, undertaking of States, 665 revision and development of law in, 668-669 Russia as party to, 918 scope of, 277 scope of application, 994 si omnes clause, provision overcoming, 669-670 Sick and Wounded Convention, adoption of, 668 civil war, effect in, 672-675 Commentary to, 671 redrafting, proposal for, 675

si omnes clause, provision overcoming, 669-670 supervision, 83-93 United Nations organ, supervisory functions of, 86 war victims, protection of, 277-278, 729 Weapons Convention. See Weapons wounded and sick, treatment of, 143 Geneva Conventions Protocol I act of aggression or use of force, not legitimizing, 713 acts of subordinate, responsibility for, 274 adoption of, 281, 637, 861, 1056 Article 51, drafting history of, 507 articles of, 863 attacks, definition, 506 bombardment, provisions relating to, 440-449 breaches, repression of, 273, 315-316, 609 civilian population, protection of. See Civilian population civilians and combatants distinguished. See Civilians; Combatants collective penalties, prohibited, 457 Colombia, accession by, 869 Constitutional Court judgement, 870871 combatants and civilians, 190-209. See also Civilians; Combatants combatants, treatment of, 112-113 commanders, duties of, 273 common Article 1, incorporation, 710-719 death penalty, provision for, 107 definitive text, publication of, 103 discussion of, 61 dissemination, 319-320, 606 documents relating to, 122 elements of crime, defining, 948 enforcement, 948 extent, 183 failure to act, 273, 317-318 penal responsibility for, 114-115 general provisions, 272-274, 307-319 Geneva and Hague law, getting rid of distinction between, 949 Hague Convention IV Article 3, modernized version of, 637-638

Index 1097 humanitarian considerations vs. military requirements, 191-193 ICRC Commentaries, 713-720 implementation, 948 implementation and supervision, 113-116 individual responsibility, 312-319 international and non-international armed conflicts, distinction between, 104 International Humanitarian Fact-Finding Commission. See International Humanitarian Fact-Finding Commission international humanitarian law, use of term, 422 international law of armed conflict, reflecting changes in, 633 medical neutrality rules, 1011-1017 medical personnel, definition, 1011-1013 merits of, 182 method and means of combat, 111 new version, 98 Non-Governmental Organizations, Memorandum by, 123 official title, 182-183 orders, refusal to obey, 604 parties to, 448, 952 perfidy. See Perfidy places of worship, protection of, 424-426 prisoners of war, new category of, 105 protected persons, 458 Protecting Powers, 616-617 supervisory functions of, 307-312 protection of cultural objects, provisions on, 423-428 Protocol II, differences in, 189 questions arising, 133 reprisals, problem of. See Reprisals reservations, 272 ruses of war, definition, 112 scope of, 40, 104, 127-130, 182, 861 scope of application, 281-287 definition, 710-711 substantive issues, 288-307 superior orders, acting under, 317-319 supervision systems, reinforcement of, 105 text, preparation of, 181

title, 739-740 United Nations, recourse to, 618-619 violations, enquiry into, 310-310 machinery for exposing, 274 repression of, 114 warfare, methods and means of. See Warfare wars of national liberation, addition of reference to, 119-120, 127-130 wars to which applying, 867 wounded and sick, rules for treatment of, 1011-1017 Geneva Conventions Protocol II adoption of, 281, 861, 1056 amnesty clause, 881-882 application and non-intervention, interpretation of rules on, 867-869 armed conflict, application to, 863-864 articles deleted by consensus, 185 articles of, 863 basic precepts in Article 3, development of,, 862 bombardment, provisions relating to, 440-449 breaches, repression of, 115 CDDH, in, 863-867 civilian populations, protection of, 107-111 Colombia, accession by, 322-323, 869 Constitutional Court judgement, 871884. See also Colombia combatants and civilians, 192 combatants, obligations on, 106 common Article 1, no incorporation of, 713 conditions for applying, meeting, 866 death penalty, provision for, 106-107 defeat. saved from, 185 definitive text, publication of, 103 different readings of, 865 dissemination, 319-320, 886 dissident armed forces, conditions applying to, 866 documents relating to, 122 enforcement, 948 examination of, 93-97

1098 Index existing humanitarian law, reaffirmation of, 133-134 field of application, 94086 general provisions, 272-274, 307-319 historical foundation, 862 humane treatment, character of rules on, 788 requirement of, 105-106 ICRC Commentaries, 713-720 impasse as to application, 865 implementation, 948 implementation and supervision, 113-116 individual responsibility, 312-319 internal armed conflicts, medical neutrality in, 1018-1021 international and non-international armed conflicts, distinction between, 104 international humanitarian law, use of term, 422 Latin-American countries, application in, 864 making of, 184-186 material field of application, 186-187, 864 merits of, 182 military obedience, issue of, 881 new ground, breaking, 862 Non-Governmental Organizations, Memorandum by, 123 non-international armed conflicts, on, 61, 93-97 objective criteria as to application, 868 official title, 182-183 outside supervision system, lacking, 188 parties to, 448 prisoners of war, omission of reference to, 105 private individuals, rights and duties of, 115 prohibited violence, 504-505 prospect of acceptance, 98 Protecting Powers, supervisory functions of, 307-312 protection of cultural objects, provisions on, 423-428 Protocol I, differences in, 189 questions arising, 133 reprisals, problem of. See Reprisals

reservations, 272 scope of, 104, 861 scope of application, 281-287 separation of international and noninternational conflicts, question of, 133 simplified version, 185, 287 sovereignty vs. international concern, 186-189 State sovereignty, strong emphasis on, 187 statement of principles, as, 183 substantive issues, 288-307 supervision systems, reinforcement of, 105 terror, reference to, 502-503 text, preparation of, 181 title, 739-740 violations, machinery for exposing, 274 Genocide Convention, 939 International Criminal Tribunal for Rwanda, jurisdiction of, 950 Grotius jus in bello, views on, 327-338. See also Jus in bello Guantanamo Bay captives in, 923 enemy combatants in, aliens, classification of, 588-589 detention at, 575 habeas corpus cases, 585-590 judicial notice of status, 588 location of camp, 589 precautionary measures, request by IACHR, 575-585 habeas corpus cases from, 585-590 unlawful combatants in, argument of, 923-925 Guerilla definition, lack of, 512 fighters. See Guerilla fighters human rights, violation of, 513 justification of recourse to force, 513 law of war, in, 516 meaning, 467, 511 notion of, 467-468 political significance of events, 512 small war, as, 467, 511 tactics,

Index 1099 base of operations, 468 meaning, 468 terrorist acts distinguished, 499-500, 509 use of term, 497 vagueness of definition, 473 violence, level of, 500 warfare, 22-23, 467 absence of rules for, 515 armed conflict rules not adapted to needs of, 502 captured combatants, status of, 47-48 civilian population, threat to, 703 fighters, position of, 70 history, in, 511 humanitarian law, and, 513-519 International Committee of the Red Cross conference, 46-48 military objective, acts against, 508-509 non-conventional form, as, 500-501 prisoners of war, 72 prisoners, treatment of, 489-490 resistance, as, 511 rules applicable to, 501-502, 517 terrorism, and, 501 wars, conduct of, 512 meaning, 467, 511 victims of, 511 weakness of, 512 Guerilla fighters captured, fate of, 703 conclusions, 494 detainees in South Vietnam, classification of, 492-494 execution of, permissibility, 478-480 systematic, policy of, 480-481 invasion, countering, 480 irregular combatants, as, 468-469 meaning, 467 prisoners of war, as, grant of treatment as, 481-483 not treated as, 476-477 treatment, conditions for, 518 privileged belligerency, requirements for, fixed distinctive sign, 485-486 force as a body, of, 491-492 information, issue of, 490

obligation to carry arms openly, 486-487 obligation to conduct operations in accordance with laws and usages of war, 487-488 party to conflict, belonging to, 483-485 Prisoners of War Convention, conditions in, 483 prisoners, treatment of, 489-490 responsible commander, 485 terrorism, condemnation of, 488-489 treacherous conduct, 489 treatment of, Civilians Convention, under, 477-480 Geneva Convention, under, 477 humane, 477 issues, 474 obligation to give quarter, 475-476 occupied territory, captured in, 479 trial of, 479 US Commander’s Handbook on the Law of Naval Operations, reference in, 560 uniform, 485-486 Gulf War 1980-1988 applicable law, customary international law, 401 Martens clause, 403 primordial interest, of, 402-403 principles, 402 relevant treaties, 400 fact-finding, 418 international navigation, unlawful operations against, 1046 jus in bello, rules of, 399 mine-hunting. See Mine-hunting mine-laying, destruction of vessel involved in, 1043 neutrality in, 1039-1046 nuclear and oil facilities, targeting, 409411 repercussions of, ICRC, role of, 413-414 Protecting Powers, activities of, 412-413 protests, 412 United Nations, role of, 414-419 reprisals, 407-409 warfare,

1100 Index chemical weapons, prohibited, 403-404, 416-419 distinction, principle of, 405-409, 415416 nuclear and oil facilities, targeting, 409-411 parties, attitude of, 411 prohibited means of, 403-404 prohibited methods of, 404-411

H Habeas corpus Guantanamo Bay, cases from, 585-590 Hague Convention II defects, opportunity to mend, 636 Hague Convention IV applicability, 634 Article 3, belligerent party, reference to, 643 bonding force, 651 compensation, use of term, 639-640 content of, 656-657 courts, access to, 643-648 customary international law, as part of, 652-653 detained persons, position of, 648-649 diplomatic protection, recourse to, 646-647 direct victim, application to, 656 drafting history, 655 enemy and neutral persons or states, no distinction between, 662 individual right to claim damages under, 631-663 individuals, rights of, 660-661 lacuna, covering, 634-635 legal proceedings, 642 local remedies, exhaustion of, 646 lump-sum agreements, 647-648, 662-663 national State, claims passed to, 657 neutral, damage or injury caused by, 643 object and purpose of Convention, interpretation in light of, 658-659 ordinary meaning of, 655 original idea of, 655 Philippine comfort women, cases concerning, 651-663 precedents as to application of, 663

principle of compensation, 637 procedure, matters of, 640-643 purpose of, 634-638, 641 ratification by Japan, 633 right of persons in occupied territory to claim compensation, 638-640 rule of treaty law recognised as rule of customary law, as, 653-654 self-executing character of, 645 State responsibility, covering, 639 terms for presenting claims, 644 treaty provision, interpretation as, 654-659 binding force, 631-634 Hague Regulations, violations of, 636-637 Japan, binding on, 631-634 object and purpose of, 658-659 ratification by Japan, 633 Hague Conventions evils of war, diminishing, 360 Martens Clause, 387, 950 modernisation, need for, 707 revision of law, conference on, 278-279 Hague Peace Conference bombardment, discussion of, 434-438 First, 933 Centennial, 944-945, 1051-1080 high tribunal, proposal for, 935 law codified by, 27 Second, 933 Human rights agencies, scope of activity, 856 Americas, international aspect of law in, 893 armed conflicts, in continued application on, 71 Resolutions, 121 UN Legal Committee, allocation to, 102 civilians, of, 294-295 Human Rights Watch, 733 International Conference, Teheran, 35 international humanitarian law, and, 26-27 separation of, 925 supervision of, 619 Latin America, violations in, 955-957 law of armed conflicts, impact on, 144-145

Index 1101 NGCO Geneva Conference, 1968, 706 Office of High Commissioner, terms of reference, 733 Respect for Human Rights in Armed Conflict, report on, 57 respect for in armed conflicts, UN resolution, 35 scope of jurisdiction, territorial, 590-591 Teheran Conference, 1968, actors in, 709 draft resolutions, 706 MacBride, role of, 704-706 Resolution of, 704 Resolution XXIII, impact of, 708-710 United Nations, consideration in, 101 Humanitarian activities definition, 65 Humanitarian law. See International humanitarian law

I Inter-American Commission on Human Rights American Convention on Human Rights, ambiguity of, 577 amnesties, issue of, 1075-1079 broad powers of, 903 competence, issue of, 898 overstepping, 894 conduct of parties to conflict, measuring, 853 Constitutional Court case, position in, 906-912 contentious case, competence in, 581 decisions of, 733 establishment of, 576 individual petitions, competence to deal with, 576 function of, 893 individual complaints to, 734, 852, 855 powers as to, 894 international humanitarian law, application of, 903, 925 jurisdiction to apply, 580-581 reference to, 733 Las Palmeras case, position in, 896-899 mandate, 852

non-governmental parties, lack of competence against, 734 non-State parties to American Convention on Human Rights, authority over, 582-585 Organization of American States, as organ of, 893 precautionary measures, request for, 575-585 sovereign states, relationship with, 916 standards applied by, 579 supervision by, 578-579 toleration or rejection of modus operandi of, 916 Inter-American Court of Human Rights acceptance of jurisdiction, 908 amnesties, issue of, 1075-1079 Constitutional Court case, Commission, position of, 906-912 facts of, 904-906 inadmissibility of withdrawal by Peru, 914 merits of, 914 Peru, withdrawal of acceptance of jurisdiction by, 895 views of court, 912-914 Las Palmeras case, 580, 894 Commission, position of, 896-899 facts of, 895-896 government of Colombia, position of, 900 reliance on, 924 Separate Opinions, 901-903 views of court, 900-903 Peru, withdrawal of acceptance of jurisdiction by, 895, 904-915. See Constitutional Court case, above sovereign states, relationship with, 916 Tablada case, 896-899 Internal affairs forces involved in, 6-7 International affairs actors, disparate, 4 States, 5-6 interdependence, 4 international organizations, role of 4-5 setting, 2-14

1102 Index theatre of, 2 International Commission of Jurists Secretary-General, MacBride as, 704-706 International Committee of the Red Cross activities between Conferences, 57 Advisory Group of Government Experts, 103 armed conflicts, adoption of principles applicable in, 35 Baghdad headquarters, attack on, 1081 Colombia, in, 852 country at war, access to territory of, 987-988 cultural property, protection of, 428-429 dissemination of international humanitarian law, resolution for, 607-608 Draft Rules for the Limitation of Dangers incurred by the Civilian Population in Time of War, 34, 141 Draft Rules for the Protection of the Civilian Population from the Dangers of Indiscriminate Warfare, 34, 140-141 function of, 86, 984-985 Geneva Conventions 1949, Commentaries to, common Article 1, on, 693-703 conclusions, 702 Fourth Convention, 700-701 practical value of, 693 Second Convention, 701 Third Convention, 701, 719 writing of, 692 governmental authority, respect for, 988 guerilla warfare, rules for, 501-502, 517 Gulf War 1980-1988, role in, 413-414 humanitarian activities, 1010 humanitarian mission, difficulty in carrying out, 595 initiative, right of, 1018 internal armed conflicts, involvement in, 674 international humanitarian law, applying, 853 mandate, 851-852, 855 National Societies, co-operation with, 991 nature of, 984

nuclear disaster, concern with threat of, 34 Plan of Action, 428-429 Protecting Power, as, 86 protection and assistance, general task of, 990 red cross emblem, use of, 40-41 requirement to grant facilities to, 10151017 right of initiative, 985-986 Standard Minimum Rules, proposal for, 47 supervisory role, 615-616 Swiss citizens, association of, 984 victims, efforts in aid of, 984-985 violence against delegates, 1082 wartime monitoring by, 794 Weapons Convention 1981, role in drafting, 380-382 wounded and sick, aid to, 1010 International Court of Justice Geneva Conventions common Articles 3 and 1, application of, 721 Nicaragua judgement, 720-722 Nuclear Weapons advisory opinion, 898 United States, jurisdiction accepted by, 720 US humanitarian assistance to Contras, judgement on, 975-977 Yugoslavia, case by, 920-921 International Criminal Court armed conflict, definition of, 954 crimes adjudicated by, 1073 international humanitarian law, jurisdiction defined as, 950 positive effect, 946 PrepCom, 943, 945 Statute, adoption of, 941, 1060 change in attitude to, 944 draft, 942 jurisdiction under, 943 war crimes brought before, 943 International criminal law complementarity, aspects of, 954-957 international humanitarian law, move from, 947-957

Index 1103 International Criminal Tribunal for Rwanda establishment of, 941, 1060 international humanitarian law, jurisdiction defined as, 950 jurisdiction, 942 International Criminal Tribunal for the Former Yugoslavia armed conflict, definition of, 953-954 nature of, 926-928 attacks on Sarajevo, judgement on, 449461 Commission of Experts, 944 establishment of, 941, 1060 internal conflict, application of Statute to, 324 international court proper, as, 831 international humanitarian law, application and interpretation of, 10621063 jurisdiction defined as, 950 jurisdiction, 921, 942 Kupreskic judgement, crimes against humanity, defendants found guilty of, 822 criticism of views, 831 dissident States, issue of, 828 each defendant, role of, 822 facts of case, 821 length of, 820 obligation to respect and protect civilians, 822-824 Parts of, 820-821 precedent, limited importance of, 822, 831-832 preliminary issues, 822 reprisals against civilians, discussion of, 826 to quoque principle, 822 Martens Clause, use of, 825, 833 Martic Rule 61 case, applicable rules, identification of, 814 competence, 813 Decision, 813-820 facts of, 811-813 reprisals, prohibited, 815-817 serious violation, criteria for, 819

Milosevic, indictment of, 1074-1075 NATO’s activities, interest in, 921-922 reprisals, decisions on, Kupreskic judgement, 820-834 Martic Rule 61 decisions, 811-820, 833-834 persuasive authority, as, 833 scope of jurisprudence, 927-928 sources of international law relied on, 832 violation of cultural property, jurisdiction over, 426-427 International Fact-Finding Commission. See also International Humanitarian Fact-Finding Commission appraisal, 804-808 Article 90, drafting history of, American draft, 799 CDDH, adoption of Article 79bis by, 794-795, 804 Committee I, Fourth Session, 800-803 Committee I, Fourth Session Working Group, 799-800 Committee I, Third Session, 797-799 first proposals, 795-797 opponents, 798 Plenary Meeting, Fourth Session, 803-804 competence, 801, 806 creation of, 793 establishment of, 948 functions, 801 mandatory powers, 802, 806-807 members, election of, 804 proposal for, 795-797 renaming, 805 role of, 734-735 Rules of Procedure, 805 title, establishment and composition, 800 International humanitarian assistance coordination, 532 definition, 528-529 motive, 529 scope of, 529 shortcomings of system, 533 sovereignty, issue of, 531-532 specific generally applicable rules, absence of, 533 victims, to, 521, 528-533

1104 Index International Humanitarian Fact-Finding Commission actual work, failing to attract, 836, 843 prospect of, 840 break-up of Yugoslavia, allegations arising from, 838 bypassing, 856-857 cases in which prepared to act, 844 Chechen Republic of Ickeria requesting investigation by, 919 Colombia, case of, 839 official recognition of competence by, 883-884 competence, scope of, 844, 848 States recognising, 836 creation of, 835-836, 843 enquiry, focus and purpose of, 845-846 establishment of, 794 failure to demonstrate capabilities, 841 future of, 857 good offices function, 848-849 independence, 838 individuals, rights of, 849-853 internal armed conflicts, activity in, 806 international armed conflicts, activity in, 806 International Fact-Finding Commission, renaming, 793, 805 judicial character of procedures, 853-854 legal evaluation of case by, 848 mal-conduct, examination of, 807 mandate, 805, 839 official rules, deviation from, 854-855 persons criminally liable, identification of, 840 promotional activities, 837 redress, provision of, 854-855 reparations, right of individuals to claim, 849-853 reports, 855 restrictions on, 837 rules of procedure, 854-855 secretariat, 919 situations in which involved, 839 sleeping beauty, as, 835-841

untested capacities of, 837 violation of international humanitarian law, determination of, 846-849 International humanitarian law application and interpretation of, 1062 armed conflict, applicable in, Fundamental Rules, 601 interests of States, balancing, 597 meaning, 275 Netherlands, attitude of. See Netherlands principles of, 28-29 reaffirmation and development. See Conference of Government Experts on Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts; Diplomatic Conference on Reaffirmation and Development of International Humanitarian Law; Diplomatic Conference on Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts Applicable Resolutions, 119-10 scope of, 26, 276 standards, respect for, 598 treaties, incorporated in, 27 use of weapons and means of warfare, relating to, 27 Battle of Solferino, development following, 996-997 belligerent parties, reaction to violations by, 731 codification, efforts to, 102 Colombian Constitutional Court, views of, 876-879 common use of, 949, 993 comparative community of States, role of, 618-620 conflicting elements, balance between, 995 considerations vs. military requirements, 191-193 cultural property, protection of. See Cultural property customary rules, 1063

Index 1105 dissemination and development, role of Red Cross societies, 91 dissemination, 605-608, 886-887 Draft Protocol II, codification and development by, demonstration of thesis, difficulties of, 134-137 thesis, 134 early years, in, 996-1005 effective implementation of, 878-879, 890 effects, 124 extension of term, 950 faithful respect for, 735 Geneva, law of, 27 Hague, law of, 27 human rights bodies, supervision by, 619 human rights law, and, 26-27, 582, 584 separation of, 925 implementation and supervision, 113, 614-618 instruments, 600 Inter-American Commission on Human Rights, application by, 580-581, 903, 925 international criminal law, move to, 947-957 international level, measures at, comparative community of States, role of, 618-620 fact-finding, 613 need for, 610 reprisals, 610-613 supervision, 614-618 international tribunals, jurisdiction of, 950 Latin America, violations in, 955-957 law of war, shift in focus from, 426 method and means of combat, as to, 192 national measures for application of, armed forces, instructions for, 599-602 discipline, system of, 602-605 dissemination, 605-608 means of, 598 peacetime preparation, 598 Rules of Engagement, 600-601 time factor, 598 violations, repression of, 608-610 nature of, 118

Netherlands, attitude of. See Netherlands principle of proportionality, place of, 109-110 prohibited practices, 595 promotion of respect for, 730 Protecting Powers, co-operation and scrutiny, 614 designation and acceptance of, 616-617 interests of parties, safeguarding, 616617 supervision by, 614-618 public international law, as part of, 596 reaffirmation and development, aim of, 191 reciprocity, rule of, 877 respect for, factors influencing, 596-598 promotion of, 620 scope of, 421, 993 situation of armed conflict, application to, 929 sources of, 949-953 threats to, 703 tomorrow’s victims, protection of, 729-735 UN bodies promoting respect for, 732 unlawful aggression, defence against, 514 use of term, 421-422 victims of acts of aggression, protection of, 118 violations, effect of work of ICRC, 595 repression of, 608-610 International law foreigners, treatment of, 659-660 individual as subject of rights in, 644-645, 659-662 inter-State relations as natural domain of, 183 respect for, 596 International Law Commission Draft Code of Crimes, 942 establishment of, 278 law of war, not dealing with, 33, 278 International organizations international affairs, role in, 4-5 International Red Cross and Red Crescent Movement. See also Red Cross

1106 Index creation of, 522 origins of, 521 Iron Curtain fall of, 940 Irregular fighters exceptional regime for, 205-209 freedom fighters, 195-196 guerilla. See Guerilla non-prisoner of war status, 205-206 position of, 195 prisoner of war, treated as, 207-208 rules of international law, compliance with, 211 status and treatment of, 196-199, 292 Israel reprisals by, 755

J Journalists dangerous missions, engaged in, 50-51 International Convention, draft articles, 59 protection of, 122, 131 special protection, 82-83 US Commander’s Handbook on the Law of Naval Operations, reference in, 563 UN resolutions, 57-59 war correspondents, 562 Jus ad bellum meaning, 14 Jus in bello binding force of, 337 Grotius, views of, adversaries, treatment of, 333-334 assassination, types of, 331-332 basic rule, 327-328 deceit, mode of, 329 falsehood, 330, 336-337 good faith between enemies, 334-335 military necessity, doctrine of, 327 prisoners of war, treatment of, 333-334 property and things, destruction of, 334 relevance of, 335-336 ruses of war, 329, 331, 336 unlawful war, actions in, 332 Gulf War. See Gulf War 1980-1988 meaning, 14

permissible actions, 327-328

K Kosovo Bankovic case, 922-923 International Court of Justice, case before, 920-921 Milosevic, indictment of, 1074-1075 NATO’s activities in, 920-923 Operation Allied Force, 920

L League of Nations Disarmament Conference, 12 Levee en masse participation in, 551

M Medécins sans Frontières role of, 1025-1026 Medical neutrality aid workers, categories of, 1027-1031 civilian medical units, attached to, 1029 extent of protection, 1027-1031 incidental involvement, 1031 medical units, attached to, 1027-1029 military medical units, attached to, 1028 professional, 1030 ambulances, protection of, 1082 civilian hospitals, 1007 codification, 999-1001 concept of, 998 discrimination, prohibition, 1027 distinctive sign, need for, 998-1000, 1003-1004 duties, personnel to be permitted to carry out, 1009 duty, as, 1025-1027 emblem, 998-1000, 1003-1004, 1010, 1019, 1024, 1032 Geneva Conference and Convention of 1864, 999-1001 Geneva Conference of 1863, 997-999 Geneva Conference of 1906, term shelved by, 1004

Index 1107 Geneva Conventions of 1899 and 1906, 1001-1005 Geneva Conventions, as term of art in, 1003 hospital staff, of, 1008 individual physicians, of, 1013 information, provision of, 1015 internal armed conflicts, in, 1017-1021 inviolability, and, 1001 law in force, 1031-1032 meaning, 993 meanings of terms, 1024 medical meaning, 1024 Protocol I, rules in, 1011-1017 punishment, prohibited, 1014 Red Cross or Red Crescent societies, of, 1009 relief societies situated in territory of country at war, of, 1020 requirement for, 1026 requirement to grant facilities, 1015-1017 respect and protection, substitution of, 1001-1005 risk and protection, 1023-1024 voluntary aid societies, personnel of, 1003 Mercenary rights of, 209 Merchant vessels crew as noncombatant persons, 563 distinction, principle of, 569 interdiction of, 568 law and practice, 568-569 military objective, as, 570-572 paper on targeting, 567 status, determining, 571 traditional law, view of, 568 war effort, contribution to, 572-574 Military deployment engagement in, 202 meaning, 203 Military objectives acts of violence, objects of, 508 alleged use, 214 attacks on, precautionary measures against, 77-78 attacks, 109-110 civilian objectives distinguished, 213-214 civilian population, locating among, 223

civilians near, attacking, 218-225 criteria, 213 definition, 108 views on, 953 enemy troops, 212 merchant ship as, 570-572 military advantage, gaining, 213 naval warfare, in context of, 571 objects of, 74 objects qualifying as, 212 use of civilian population to shield, 224 Mine-hunting Gulf War 1980-1988, activities in, Belgian and Dutch ships, of, 1033-1048 British frigate, protection from, 1047 change in attitude to, 1033 defensive nature of, 1042 delivery of mine-hunters to Kuwait, 1040-1041 final sweep, 1048 navigation, freedom of, 1035-1037 neutrality, 1038-1039, 1044-1047 risk to neutrality, 1044-1045 vessels, choice of, 1034 Western European Union members, by, 1034 Mines civilian population, protection of, 303 Diplomatic Conference, Dutch attitude in, 303 hunting. See Mine-hunting Protocol, 373, 766 reprisals, prohibitions, 810

N Natural environment protection of, 226, 231-234, 247 Netherlands civil defence, 303-304 conferences hosted by, 281 Hague Law, as guardian of, 276-281 international humanitarian law applicable in armed conflicts, development of, civil defence, 303-304 combatants and resistance fighters, 288-294 dissemination, 319-320 emblems, 303-307

1108 Index general provisions of Protocols, 307-319 Geneva Conventions additional Protocols, scope of application, 281-287 human rights of civilians, 294-295 meaning, 275 post-World War II, 275 protection of civilians, 296-299 weapons, 299-304 mine-hunting. See Mine-hunting Neutrality active and passive, 1024-1026 concept of, 1038 Gulf War, in, 1038-1039, 1044-1047 Hague Convention V, provisions of, 963-964 Hague Convention XIII, provisions of, 964-968 Hague Rules of Aerial Warfare, 968 impartiality, assistance, giving of, 982 environmental damage, and, 963-972 positive notion of, 979 requirement of, 1038-1039 violations of, 962 international law rules applying, 961 law, future development, 973 present state of, 972 scope of, 961 medical. See Medical neutrality non-participation, environmental damage, and, 963-972 violations of, 962 Red Cross principles, 978-984 requirement to respect, 982 State, environmental damage to territory of, 962-963 Swiss, violation of, 970-972 territorial aspect, writers dealing with, 968-970 territorial waters, acts of hostility in, 965 use of term, 1025 violations of, impartiality, of, 962 nature of, 961 non-participation, of, 962 State practice, 970-972 Swiss, 970-972

Nicaragua armed conflict, nature of, 926 Non-prisoner of war status of, 205-206 Noncombatant persons adequacy of term, 565 attached to armed force, 537 chaplains, 553-556 Commander’s Handbook. See Commander’s Handbook on the Law of Naval Operations distress, combatants in, 556-558 Geneva law, 538 Hague law, 538-539 journalists on dangerous missions, 563 meaning of term, 536-537 medical personnel, 553-556 merchant marine and civil aircraft crew, 563 persons accompanying armed forces, 562 protected status, 537 protective signs and identification, 563564 treaties, 537-539 war correspondents, 562 Nuclear warfare existing laws of armed conflict, application of, 141 Nuclear weapons development of, 34 Diplomatic Conference, Dutch attitude in, 300 general principles of war, application of, 122 issue of, 1065, 1071 retaliation, threat of, 755-756 threat of, 13

O Organization of American States Charter, 893-894

P Parachutists attacking, 267-271, 293 Perfidy acts of, 69

Index 1109 admissibility of weapons, as criterion for, 161 adversary, confidence of, 265 armed conflict, rules applying in, 265 customary international law, prohibited in, 264 definition, 112 military circles, despised in, 264 precise definition of, 265-266 principles as to, 265 prohibition, 69, 112 Protocol I, provision of, 265 rules of, 51 treacherous act and ruse of war, meaning, 264-265 treacherous conduct, 489 Peru Inter-American Court of Human Rights, case before. See Inter-American Court of Human Rights Prisoners of war captured guerilla combatants, status of, 47-48 Convention, Protocol, 47 revision of, 288 damages or injury, claim for compensation for, 648-649 detainees in South Vietnam, classification of, 492-494 determination of status, 560 Draft Protocol I, new category in, 196 forfeiture of status as, 205 Geneva law, 558-559 Grotius, views of, 333-334 guerilla fighters, 72 conditions for, 518 privileged belligerency, requirements for, 483-494. See also Guerilla fighters treatment of, 476-477, 481-483 illegal combatants, 560-561 independent missions, combatants on, 112 non-international conflict, in, 44-45 organized resistance movements, members of, 105 persons not entitled to treatment as, 44-45 Protocol II, status under, 882

qualification for status, 197 release where not evacuated, 267 reprisals against, 761 resistance fighters, status of, 289-292 resistance movements, members of, 194 status of, 558-562 treatment of, US Commander’s Handbook on the Law of Naval Operations, reference in, 562 trial, on, 207 Proportionality, principle of humanitarian instrument, in, 109-110

R Red Cross emblem, 305-307, 998-1000, 1003-1004, 1010, 1019, 1024, 1032 international committee. See International Committee of the Red Cross International Court of Justice, reference by, 975-975 International Red Cross and Red Crescent Movement, Statutes of, 980 National Societies, activities outside territory of, 989-991 civil war, giving relief in, 983-984, 988 classical role of, 981 establishment of, 979 French, activities in Africa, 989 Guide for, 989-990 ICRC, co-operation of, 991 medical neutrality, 1009 neutral State, of, 981-982 protected persons, application by, 10091010 requirement to grant facilities to, 1016 wartime activities, treaty law covering, 980 Netherlands, in, 980 principles of impartiality and neutrality, activities, impact on, 979 International Court of Justice, reference by, 976 interpretation, 978, 981 misinterpretation, 982-983 non-discrimination, 978-979 Pictet, work of, 978-979 treaty law, reflected in, 978

1110 Index Voluntary Aid Society, as, 980 Relief societies humanitarian actions by, 247-248 medical neutrality. See Medical neutrality Red Cross. See Red Cross Reprisals areas where not formally prohibited Gas Protocol, 785-786 means and methods of warfare, 782-785 Protocol I Part IV, lacuna in, 780-781 armed conflict law, enforcement of, 53 belligerent, 760 meaning, 809 recourse to, 610-611 breach of humanitarian law, countering, 749-750 categorical ban, criticisms of, 752 CDDH, discussions in, 739 Committee I, assignment of question to, 746-747 fourth session, 756 French, measures introduced by, 747-751, 757, 764 main Committees, 740-747 proposal, 747 civilian objects, against, general international law, rules of, 826 protection of, 741-742 civilians, attacks on, 75-77 civilian population, against, 544, 742 balance of forces, upsetting, 754 combat situations, in, 827 considerations, 752-753 denunciation, 753 desirability of prohibitions, 771-776 enemy, 763 internal armed conflict, in, 829-830 need for, 751 Protocol II, provisions of, 762-763 threat of, 772 works or installations containing dangerous forces, attacks on, 770-771 civilian population, for attacks on, 75-77, 407-409 conditions prior to recourse to, 747-748 criticism of, 759 dissident States, issue of, 828

Draft Protocol, prohibitions in, 88-89 function and efficacy of, 754 future legislation, 791-792 genuine, 775 Gulf War 1980-1988, in, 407-409 human rights principles, fundamental breach of, 827 inter-state conduct, 809 internal armed conflicts, in, 787-790 International Criminal Tribunal for the Former Yugoslavia, decisions of, Kupreskic judgement, 820-834 Martic Rule 61 decisions, 811-820, 833-834 Iraq, claim by, 828-829 Israel, by, 755 issue of, 611-612 legal device, as, 834 legal state of affairs, 767-780 legitimate countermeasures, last-resort system of, 750 meaning, 809 military utility, 769 natural environment, against, 234 non-occupied territory, against, 762 nuclear retaliation, threat of, 755-756 permissible, restraints, 742 prisoners of war, against, 761 prohibited, 216-217, 611-612, 730-731, 741 prohibitions, desirability of, 771-776 Hague Convention, by, 767 history of, 760-766 militarily acceptable, 768-771 Mines Protocols, in, 810 Protocol I, 810 Protocol I, in, 767-780 reservations, 776-780 specific, list of, 764-766 treaty, 760-761 protected persons and goods, against, 762 Protocol I, desirability of prohibitions, 771-776 lacuna, 780-781 legal state of affairs, 767-780 militarily acceptable prohibitions, 768-771 prohibition in, 810

Index reservations, 776-780 provisions outlawing, 760 qualified ban on, 742-744 reciprocal, 774 reciprocity, 757-758 Second World War, 937 threat of, 755, 757 US Commander’s Handbook on the Law of Naval Operations, 544 use of force, implying, 89 use of term, 744 works or installations containing dangerous forces, attacks on, 770-771 Resistance fighters captured, punishment of, 290 improvements to position of, 291 occupied territory, in, 291 prisoner of war status, 289-292 status of, 288-289 sympathy for, 289 Ruses of war definition, 112 Russia US-Russia arms reduction treaty, 1065

S Second World War bombardment in, 438-440 comfort women, reparation to, 1080 crimes, punishment of, 935-936. See also War crimes declarations of war, 15-16 international conflict, as, 917 Security collective, Charter system, failure to bring into full effect, 10 United Nations, role of, 8-10 internal, 9 national, other States, matching, 11 provision of, 10-12 Self-defence right of, 225 Self-determination wars of, 20 Spy persons treated as, 208-209

1111

State armed conflicts, as actor of, 136 balance of power, 11-12 forces, 6-7 internal affairs, concern of, 183 international affairs, role in, 5-6 national security, 10-12 protection of interests, 7 sovereign equality, 18 State responsibility international wrongful acts, for, 639 Superior orders defence of, 88 issue of, 87, 888-890

T Terrorism acts causing physical violence, and, 504 civilian population, protection of, 505 condemnation of, 488-489 definitions of, 499 excessive violence, as, 501 Geneva Conventions, lack of definition in, 504 guerilla acts distinguished, 499-500, 509 intimidation, notion of, 500 military objective, acts against, 509 prohibited acts of, 216-217 prohibition, 504 purpose, 505-506 symbolic acts, 508 Twin Towers, attack on, 1081 use of term, 75, 497 violence, level of, 500 Treaties acceptance, modification of, 909 humanitarian character, of, 784 reservations, theory and practice of, 778

U Uganda Code of Conduct for the National Resistance Army, 602, 605, 626-628 United Nations collective security, role in, 8-10 Decade of International Law, 1060 establishment of, 276 Gulf War 1980-1988, role in,

1112

Index

chemical weapons, as to use of, 416-419 distinction, principle of, 414-419 fact-finding, 418 law of war, efforts as to respect for, 415 Security Council, concerns of, 414 international affairs, role in, 4-5 international judiciary, attempts to create, 940 involvement in armed conflicts, shift in position, 35 Military Staff Committee, 9 Millennium Summit, 1072 peaceful settlement of disputes, 1072 peacekeeping, role in, 1071 Secretary-General, Millennium Report, 1073 Security Council, advising, 9 armed forces, 8-9 judicial bodies, competence to establish, 732 prevention of armed conflict debate, 1071 reluctant State, imposing will on, 865 resolutions requiring respect for Geneva Conventions obligations, 732 War Crimes Tribunal, establishment of, 936 United States Commander’s Handbook. See Commander’s Handbook on the Law of Naval Operations Contras, humanitarian assistance to, 975-977

V Victims Battle of Solferino, of, 521-522 Dunant, reaction of to, 521-522 hostilities, of, 526 International Conference for Protection of, 1057 international humanitarian assistance to, 521, 528-533 recognition of, 523 tomorrow’s, protection of, 729-735 Violence present-day society, in, 15

public, 15

W War declaration of, 15-16 development of law of, 135 ethnic, 1057-1058 law of. See Armed conflict national liberation, 10, 20, 205, 1054 International Committee of the Red Cross conference, 46 international wars, as, 471-472 status of, 119-120, 127-130 national liberation, of, 10 self-determination, of, 20 trials, 135 war crimes internal armed conflict, in situations on, 944 International Criminal Court, brought before, 943 amnesties, 1075-1079 grave breaches, as, 314 International Criminal Court Statute, 930 Nuremberg Tribunal, Briand-Kellogg Pact, use of, 938 Charter, 936 composition of, 937 crimes against peace, jurisdiction over, 938-939 jurisdiction, 938-939 penal law, non-retroactivity, 938 Tokyo Tribunal, Briand-Kellogg Pact, use of, 938 composition of, 937 crimes against peace, jurisdiction over, 938-939 establishment of, 937 jurisdiction, 938-939 UN War Crimes Tribunal, establishment of, 936 Warfare bombardment. See Bombardment land, Convention, 435 international agreement, draft text for, 432-434

Index aerial, 23 destructive nature of, 570 Hague Rules, 968 armed conflict, law of, 753-754 assassination, types of, 331-332 civilian population, protection of, 22 concept of, 21 deceit, mode of, 329 economic, 21 International Committee of the Red Cross conference, 50 falsehood, 330, 336-337 goals of, 24-25 Government control of activities, 21 guerilla. See Guerilla Gulf War. See Gulf War 1980-1988 Hague Peace Conference, principles at, 251 human beings, as business of, 321 ICRC Conference of Government Experts Commissions, examination by, 67-69 land, on, 23 Commission on, 362 law of war at sea, and, 567 law of, meaning, 27 multilateral treaties, 28 principles of, 28-29 light projectiles, use of, 251 logistical support, 21 means and methods of, Grotius, views of, 327-338 reprisals, permissibility, 782-785 conventional weapons, 256-264 Diplomatic Conference, weapons discussed by, 255 fragments escaping detection by X-rays, weapons causing, 254-255 hors de combat, enemy rendered, 252, 266-267 indiscriminate weapons, 255-256 perfidy. See Perfidy principles and rules for, 271-272 prohibited, 301 Protocol I, scope of, 249 right to choose, 249-250 scope of, 249-250

1113

superfluous injury or unnecessary suffering, causing, 250-254, 266 modern means, cruelty of, 67 notion of, 15 political goals, 24-25 psychological, 22 ruses of war, acceptance of, 329, 331 sea, 23-24 Commission on, 362 high seas, on, 570 isolation, not existing in, 568 law and practice, 568-569 merchant shipping. See Merchant vessels outmoded law of, 567 violence, resort to, 15, 21 Weapons absolute ceiling, 12-14 acquisition and utilization of, 7 air, launched from, 362-363 anti-personnel effects, 154-155 armed conflict, law of, 753-754 arms reduction, 1064-1066 bacteriological, 299, 929 Geneva Protocol of 1925, 342 League Disarmament Conference, 342-345 blast, 166, 176-177, 257 bullets, 371 ceremonial use of, 7 characteristics, parameters for, 397 chemical, 299 Gas Protocol, 929 Gulf War 1980-1988, prohibition in, 403-404 retaliatory use of, 791 choice of, 359 civilian population, endangering, 348-351 Conference of Government Experts on humanitarian law, discussions of, 149-150 Convention on Prohibitions or Restrictions on the Use of Conventional Weapons Which May be Deemed to be Excessive Injurious or to have Indiscriminate Effects, 1981, breaches, repression of, 609-610 dissemination, 606

1114

Index

drafting, 380-383 government experts, role of, 382-383 ICRC, role of, 380-382 legal principles, functions of, 394-396 Protocols, 391-392, 624 review mechanism, 392 scope of, 391 UN Conference, 391 underlying legal principles, 393-397 conventional, Ad Hoc Committee, 256 character of prohibitions sought, 155 Conference of Government Experts. See Conference of Government Experts on Use of Conventional Weapons debate on, 1066 Diplomatic Conference on Reaffirmation and Development of International Humanitarian Law; Diplomatic Conference on Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Ad Hoc Committee, 126, 131 experts’ meeting, 152-153 indiscriminate effects, 256, 261 intergovernmental discussion, need for, 153 possible and actual effects, collection of information on, 260 prohibition or restriction of use, 256 Conference on, 766 rules for, 151 reduction, 1065-1066 Resolutions, 121 SIPRI documents, 123 specified, prohibition or restriction on use, 300-302 superfluous injury or unnecessary suffering, causing, 261-264 UN Conference, 257-258 Declaration of St Petersburg, 340, 359361, 377, 379, 394 delayed-action, 167 Diplomatic Conference, Dutch attitude in, 299-304 disarmament, 1064-1071

dum-dum bullets, 138, 364-367, 371 enemy combatants, disabling, 370 explosive bullets and projectiles, 258, 377-380 fragmentation, 117-118, 166, 176-177, 257, 371-373 future, 167-168 future developments, review of, 258-260, 265 gas projectiles, 363 Gas Protocol, 139, 342 Hague Peace Conference, discussions at, 361 harmless display of, 7-8 incendiary, 150-152, 164-165, 174, 257-258 conventional, 346 debate on, 374 Declaration of Brussels, 340 Declaration of St Petersburg, 340 development of, 339 disarmament, 355-356 First World War, use in, 341 flamethrowers, 346 Hague Peace Conference, 340-341 incendiary agents, 346-347 League Disarmament Conference, 342-345 legal restraints, attempts to introduce, 347-348 Lucerne Conference debate, 388-390 napalm, 339, 347, 349-350, 353-354 period after Disarmament Conference, 346-348 period up to UN Disarmament Conference, in, 339-342 phosphorus, containing, 353-354 possible solutions to, 355-357 prohibition, 348, 356-357 proposal for, 302-303 projectiles, 343-344 proposals to ban, 352 Protocol, 391-392 qualitative disarmament, criteria for, 343-345, 353 recent trends and expectations, 348-355 report on, 102 SIPRI documents, 123 special sanctions, 357

Index UN report, 58 UN Secretary-General’s report, 354 unnecessary suffering, calculated to cause, 353 indiscriminateness, 387, 391 international law rules relating to, 13-14 lasers, 116 legal principles relating to use of, functions of, 394-396 Lucerne Conference. See Conference of Government Experts on Use of Conventional Weapons Lugano Conference. See Conference of Government Experts on Use of Conventional Weapons mass destruction, of. See Weapons of mass destruction military necessity, meaning, 370 mines, 373 needless suffering, inflicting, 148 new designs, evaluation of, 259 nuclear. See Nuclear weapons Pictet’s principles, 368-369, 374-375 prohibited, 91, 103, 143 use of, 317 prohibition or limitation of use, meeting of experts, 116 Swedish Ministry for Foreign Affairs, report of, 117 weapons subject to, 116 purposes of, 6-8 range of, 371

1115

rifle ammunition, 379 sieges, use in, 367 small arms, accumulation of, 1066-1071 small calibre projectiles, 165-166, 169, 175-176, 257 specified, prohibition, 351-352, 784 technical improvements, 366 treacherous, 167 treaties and Protocols, adoption of, 10611062 unnecessary suffering, calculated to cause, 360, 369-370, 386-387 use of, general principles of international law, 152 war, choice for, 123 Weapons that may Cause Unnecessary Suffering or Have Indiscriminate Effects, report on, 116-117 Weapons of mass destruction Diplomatic Conference, Dutch attitude in, 300 issue of, 1065 military and non-military objectives, 142 threat of, 13

Y Yugoslavia break-up, allegations arising from, 838 interstate aggression, 941 Iron Curtain, effect of fall of, 940

International Humanitarian Law Series

1

Michael J. Kelly, Restoring and Maintaining Order in Complex Peace Operations: The Search for a Legal Framework, 1999 isbn 90 411 1179 4

2

Helen Durham and Timothy L.H. McCormack (eds.), The Changing Face of Conflict and the Efficacy of International Humanitarian Law, 1999 isbn 90 411 1180 8

3

Richard May, David Tolbert, John Hocking, Ken Roberts, Bing Bing Jia, Daryl Mundis and Gabriël Oosthuizen (eds.), Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald, 2001 isbn 90 411 1482 3

4

Elizabeth Chadwick, Traditional Neutrality Revisited:Law, Theory and Case Studies, 2002 isbn 90 411 1787 3

5

Lal Chand Vohrah, Fausto Pocar, Yvonne Featherstone, Olivier Fourmy, Christine Graham, John Hocking and Nicholas Robson (eds.), Man’s Inhumanity to Man:Essays on International Law in Honour of Antonio Cassese, 2003 isbn 90 411 1986 8

6

Gideon Boas and William A. Schabas (eds.), International Criminal Law Developments in the Case Law of the ICTY, 2003 isbn 90 411 1987 6

7

Karen Hulme, War Torn Environment: Interpreting the Legal Threshold, 2004 isbn 90 04 13848 x

8

Helen Durham and Tracey Gurd (eds.), Listening to the Silences: Women and War, 2005 isbn 90 04 14365 3

9

Marten Zwanenburg, Accountability of Peace Support Operations, 2005 isbn 90 04 14350 5

10

Hirad Abtahi and Gideon Boas (eds.), The Dynamics of International Criminal Law, 2006 isbn 90 04 14587 7

11

Frits Kalshoven, Belligerent Reprisals, 2005

12

Pablo Antonio Fernández-Sánchez (ed.), The New Challenges of Humanitarian Law in Armed Conflicts: In Honour of Professor Juan Antonio Carrillo-Salcedo, 2005 isbn 90 04 14830 2

13

Ustinia Dolgopol and Judith Gardam (eds.), The Challenge of Conflict: International Law Responds, 2006 isbn    

14

Laura Perna, The Formation of the Treaty Law of Non-International Armed Conflicts, 2006 isbn 90 04 14924 4

15

Michael Schmitt and Jelena Pejic (eds.), International Law and Armed Conflict: Exploring the Faultlines, Essays in Honour of Yoram Dinstein, 2007 isbn 978 9004154 28 5

isbn 90 04 14386 6

16 Ola Engdahl, Protection of Personnel in Peace Operations: The Role of the ‘Safety Convention’ against the Background of General International Law, 2007 isbn 978 9004154 66 7 17

Frits Kalshoven, Reflections on the Law of War: Collected Essays, 2007 isbn 978 90 04 15825 2

18

Héctor Olásolo, Unlawful Attacks in Combat Situations: From the ICTY’s Case Law to the Rome Statute, 2007 isbn 978 90 04 15466 7