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Commentary - Dissemination
    [p.959] Article 83 -- Dissemination


    [p.960] 3368 In UNESCO's Constitution it is said that: "Since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed". Having regard to that pronouncement, our time calls for an unprecedented effort in the field of education and instruction. Education should "promote understanding, tolerance and friendship among all nations", (1) particularly as scientific discoveries and technological advances created immense possibilities but also entail grave dangers. (2) Thus, this effort should be generally aimed at a harmonious balance between technical progress and the intellectual and moral advancement of mankind. (3) The rules of the Conventions were never forgotten in such pleas for information and the training of minds, (4) and the Red Cross is asked to pass on its message of humanity, impartiality and neutrality. (5) Centred on armed conflicts where technical progress has uncovered hitherto unknown dangers, the Conventions are a reminder to everyone that the adversary too, is a human being, since persons ' hors de combat ' must be treated humanely. Beyond war, engines of death and blind destruction, anonymous forces confronting each other, or preparing to confront each other, there are men, women and children who all have the same dignity, are prey to the same torments and show the same courage. Such is the message of the Conventions, and, today, of the Protocol additional to the Conventions, which appeals to the heart and to the mind, and of which the dissemination "will contribute to the promotion of humanitarian ideals and a spirit of peace among nations". (6)

    3369 This is why the International Conferences of the Red Cross (7) have not ceased to attract the attention of the Parties to the Conventions, regarding the necessity of the immediate application of provisions relating to the dissemination of the rules they contain (First Convention, Article 47 ; Second Convention, Article 48 ; Third Convention, Article 127 ; Fourth Convention, Article 144 ). Essentially Article 83 of the Protocol is a reaffirmation of this. A number of resolutions of the United Nations General Assembly also urge all Member States of the [p.961] Organization to instruct their armed forces and the civilian population in the treaty rules applicable in the case of armed conflict, (8) and to take effective measures (9) to this end. The Secretary-General of the Organization was invited a number of times to encourage the study and instruction of the relevant principles by the means at his disposal. (10)

    3370 From the beginning of the preparatory discussions to the Diplomatic Conference, it was the unanimous view of the experts that the dissemination of the treaty rules was of primary importance, and that education was a better guarantee of respect for these rules than any sanction could ever be. (11) The ICRC entirely shared this view. (12) Numerous suggestions of a practical nature were presented, both during the first and second sessions of the Conference of Government Experts. We will return to these below. Despite this unanimity, it was not without some hesitation, as we will see below, that Committee I approved the draft presented by the ICRC, on the basis of the deliberations of the Conference of Government Experts. (13) At a plenary meeting following a narrow vote (14) paragraph 3 (15) of Committee I's proposal was removed, while paragraphs 1 and 2, which comprise the present Article 83 , were approved by consensus. (16) Finally the Conference adopted Resolution 21, annexed to the Protocols, which is also devoted to dissemination.

    Paragraph 1 -- Dissemination amongst members of the armed forces and the civilian population

    3371 The founding of the Red Cross and the adoption of the first Convention in 1864 signify the consecration of a principle in the law of nations by which it is as a human being -- and not only as a citizen of a particular State -- that the individual is protected. In this sense, as well as from a strictly legal point of view, a true humanitarian law was created at that time. Admittedly this was only done in anticipation of armed conflicts, because the integrity and dignity of human beings are most seriously threatened in these situations.

    3372 From the time that this body of law was established for the benefit of mankind, it seemed essential that people and not merely administrations were familiar with [p.962] it. This is the general purport of the obligation laid down in paragraph 1 of Article 83 in which the High Contracting Parties undertake, in time of peace and in time of armed conflict, to disseminate the Conventions and this Protocol as widely as possible in their respective countries in such a way that these instruments may become known to the armed forces and to the civilian population. It should be noted, ' in passing, ' that the English version uses a more imaginative wording than the French version, as it uses the word "disseminate", which evokes the idea of sowing seeds, and not only the role of spreading information evoked by the French "diffusion".

    "' Convinced ' that a sound knowledge of international humanitarian law is an essential factor for its effective application,
    ' Confident ' that widespread knowledge of that law will contribute to the promotion of humanitarian ideals and a spirit of peace among nations [...]" (Resolution 21, preamble),

    the Conference confirms in Article 83 the obligation already contained in the Conventions by which the High Contracting Parties must undertake such dissemination, both in time of peace and in time of armed conflict. (17) This is to say that it extends to all Parties to the Protocol from the moment of ratification or accession, and is not limited to Parties to the conflict nor is the obligation applicable only when there is a conflict. Taking into account the means available, some latitude has still been left to the High Contracting Parties, as revealed by the words "as widely as possible". In fact some delegations were anxious that these words might lead to confusion between the propagation of rules applicable in case of armed conflict and attempts to justify war. (18) Let us hope that these causes of concern were sufficiently answered at the beginning of the commentary on this article. In addition, Resolution 21 mentioned above, not only does not subscribe to these objections, but actually outlines in broad terms a programme of effective dissemination intended for signatory States, to be undertaken, when necessary, with the help and advice of the ICRC. National Societies are also invited to offer their services.

    3373 It should be remembered that a number of other articles of the Protocol also relate directly or indirectly to the dissemination of treaty rules. This applies to Article 6 ' (Qualified persons) ' which is concerned with the training of qualified personnel. Resolution 21, devoted to dissemination, refers explicitly to this article (paragraph 2 (b)). Article 82 ' (Legal advisers in armed forces) ' is also concerned with the dissemination of these rules, as is Article 87 ' (Duty of commanders), ' paragraph 2, which makes this the duty of military commanders. (19) Finally, Article 84 ' (Rules of application) ' provides, in particular, that the High Contracting Parties are to communicate to one another, as soon as possible, the laws and regulations [p.963] which they may adopt to ensure the application of the Protocol, including those in the field of dissemination. However, the third paragraph of the article proposed by the ICRC, (20) which explicitly laid down that the Parties to the Protocol had to report to the depositary of the Conventions and to the ICRC at intervals of four years on the measures taken with regard to dissemination, (21) had provoked problems in the Committee. It was not accepted in plenary, (22) and is therefore not included in the final text. Communication of, for example, military manuals is one of the measures often recommended in this field, and considered appropriate for encouraging a better dissemination of the treaty rules in the armed forces. (23)

    3374 In fact, the present provision does not merely lay down a general obligation to disseminate the Conventions and the Protocol. It describes this obligation in detail, as did the corresponding provisions in the Conventions, by giving as examples programmes of military instruction and study by the civilian population.

    1. ' Programmes of military instruction '

    3375 The text is clear: the High Contracting Parties are obliged to include the study of the Conventions and the Protocol in programmes of military instruction. We will not dwell at length here on all the technical aspects of such instruction; setting up the programme for this will probably require decisions at a ministerial level. In any case, the dissemination of such instruction is only conceivable if qualified personnel and adequate material are available. The representatively-attended Seminar held at San Remo in November 1972 (24) laid down some unofficial "guidelines" in this respect, as well as a "programme of instruction in humanitarian law for the armed forces", (25) from which the Parties to the Protocol could certainly gain inspiration in many respects, even though it was established [p.964] before the finalization of the Protocol. International courses on the law of war for officers have been organized since 1976, with the collaboration of the ICRC at the same Institute of San Remo. (26) Numerous publications (27) and excellent instruction materials are already at disposal at an international level, and the ICRC is available, to the extent of its means, to competent authorities to help them develop and put into practice programmes of instruction adapted to national conditions in accordance with the wish expressed in the above-mentioned Resolution 21 (paragraph 2 (a)). (28) However, these efforts, which, it is to be hoped, will continue to increase, can never be a substitute for those of governments.

    3376 All armies have manuals for military instructors' training courses, which are based on tried and tested principles of "the art of command" or those of military pedagogy. There is no reason why the instruction of international humanitarian law applicable in the case of armed conflict should not be dealt with by the same methods, which have been proven and, consequently, why it should not be directly incorporated in the military instruction as such in exactly the same way as the preparation for combat. Supplementary techniques are always useful: lectures, films, slides, audio-visual methods, war games including questions and answers etc., though for future combatants nothing can ever replace exercises in the field, as shown particularly by the military manoeuvres which take place periodically in all countries. An "assault course", an exercise of attack or defense, can no longer be conceived without the obligation of resolving the problems arising with regard to the law of armed conflict: the presence of the emblem of the red cross or the red crescent and other protective signs, the capture, interrogation and evacuation of prisoners of war, an exchange of the wounded, the burial of the dead, the protection of civilians and civilian objects, the spoils of war etc. Both for soldiers, and for officers of lower or higher ranks, the law of armed conflicts forms one of the elements of decisions which must in general be taken in the field. It is certainly always their mission which dictates their conduct in the first place, but the aim to bear in mind is that in the execution of this mission the law of armed conflicts must never be ignored. In general there is no lack of motivation outside treaty obligations for such behaviour, and the troops will understand these very well when trouble is taken to explain them: effectiveness, which means that all efforts should be concentrated on military objectives; moderation, which allows an adversary wishing to cease combat an opportunity to do so and does not drive him to despair; and finally, discipline, which means that orders are executed without invoking pretexts to try and shirk [p.965] them, even if this concerns the conduct or alleged conduct of the adversary. These essential elements of military life and of the battlefield, where the greatest pressure on the psychological resistance of soldiers and their superiors is felt, should form an integral part of the dissemination of treaty rules. Indeed, they are the origin of the law of armed conflict.

    2. ' Study by the civilian population '

    3377 In the articles devoted to dissemination, the Conventions include "the study thereof in their programmes of military and, if possible, civil instruction". The ICRC was concerned to reinforce this obligation, and following the opinion of the experts on this point, removed the words "if possible" from the draft of Article 72, which was submitted on this point to the Diplomatic Conference. However, the arguments which had been raised in 1949 for the more modest wording were put forward again. A straightforward international obligation to provide instruction for the civilian population creates technical difficulties for federal States in which responsibility for civilian education falls on regional, provincial or other authorities and not on central government. (29) Moreover, some delegations did not see how the government of their country could provide such instruction to the entire population anyway. (30) As a result of these remarks, the text was therefore revised so that it only obliges the High Contracting Parties to encourage the study of the Conventions and the Protocol by the civilian population. This formula is not unknown in domestic law. The authorities of the central government sometimes adopt "incentive legislation" with a view to facilitating activities in various fields which, from the constitutional point of view, fall under the responsibility of provincial and local authorities. The formula therefore implies that the High Contracting Parties should at least take measures conducive to the study of the Conventions and the Protocol by the civilian population, even if this might require special legislation. Resolution 21 annexed to the Protocol makes a number of suggestions in this respect:

    a) encouraging the authorities concerned to plan and give effect, if necessary with the assistance and advice of the ICRC, to arrangements to teach international humanitarian law in a manner suited to international circumstances (paragraph 2 (a));
    b) undertaking the training of suitable persons (sub-paragraph (b));
    c) recommending that the appropriate authorities intensify the teaching of international humanitarian law in universities (faculties of law, political science, medicine etc.) (sub-paragraph (c));
    d) recommending to educational authorities the introduction of courses on the principles of international humanitarian law in secondary and similar schools (sub-paragraph (d)).

    [p.966] 3378 These suggestions imply that practical measures, which fall within the competence of the central authority, are effectively taken: the texts must be available in the national language or languages, (31) appropriate support in the form of materials or personnel should be given to the institutions called upon to provide this instruction in the same way as for any other programme considered to be in the general interest, and coordination measures which, by definition, are solely within the competence of the central authority, must be taken. In this respect, the above-mentioned Resolution 21 also urges National Societies to offer their services to the authorities concerned and invites the ICRC to participate actively in this effort by publishing material that will assist in teaching this subject, and circulating any appropriate information in this respect, and by organizing, on its own initiative, or when requested by governments or National Societies, seminars and courses (paragraphs 3 and 4).

    3379 Moreover, it should not be forgotten that the activity of the Red Cross in the field of the dissemination of international humanitarian law is laid down in the Statutes of the International Red Cross, of the ICRC, of the League of Red Cross and Red Crescent Societies, and of many National Societies. As stated above, this has been the subject of several resolutions during the International Conferences of the Red Cross. (32)

    3380 Programmes of action were set up by the ICRC and the League in the field of the dissemination of international humanitarian law, based on the provisions of the treaties and constitutional documents referred to, and on Resolution 21 of the Diplomatic Conference. (33) The specific object of these programmes is:

    a) to encourage States to accede to the Protocols;
    b) to analyse the legal and practical consequences of the provisions of the Protocols;
    c) to disseminate and encourage the dissemination of international humanitarian law.

    3381 Finally, it is appropriate to keep in mind that not all States have a federal structure and many grant only a relative degree of autonomy to the educational institutions in their territory. Thus, fairly frequently it is only by means of decisions taken at a ministerial level -- whether it is a matter for the central or for a provincial government -- that the dissemination of international humanitarian law amongst the civilian population can be realistically ensured. In fact, it would be desirable to set up permanent inter-departmental committees (34) in each country to examine and establish the appropriate means for ensuring the [p.967] systematic dissemination of international humanitarian law amongst the civilian population, if possible with the support of expert organizations, and in this way to promote the spirit of humanity and consequently a spirit of peace.

    Paragraph 2 -- Dissemination of the text in times of armed conflict

    3382 The Conventions and the Protocol are to be applied in times of armed conflict, and a general training in international humanitarian law, no matter how good this is, is not sufficient then for the civilian or military authorities responsible. In fact, the corresponding provisions of the Third and Fourth Conventions provide that the authorities which would assume responsibility for the application of these Conventions in times of armed conflict, must possess the text. (35) This provision is repeated in paragraph 2 of Article 83 with a slightly different wording ("shall be fully acquainted with the text" (of the Conventions and the Protocol)), but it is extended to all military or civilian authorities exercising responsibilities in respect of one or other of the four Conventions (not only the Third and Fourth Conventions) and the Protocol. Thus it applies to all the armed land, sea and air forces, as well as to all the administration on which they depend. (36) However, this does not mean that every military commander or representative of the ministry of defence must have a full and detailed knowledge of the text of the 559 articles (not counting the Annexes) of the Conventions and the Protocol. It is sufficient that they have a knowledge of the text of the articles which are concerned with their area of responsibility, and the same applies for any representative of the civilian authorities. However, this obligation should not be interpreted too narrowly as the ordinary meaning given to the terms of a treaty should be understood in the context in which these terms are used, and in the light of the object and purpose of the treaty. (37) A general knowledge of the Conventions and the Protocol is therefore always essential, while the depth and breadth of knowledge may vary, depending on the nature and extent of the responsibilities of the person concerned.

    3383 Apart from the ministry of defence, paragraph 2 may apply to many other government departments: the ministry of foreign affairs, which is the point of contact for the personnel of the Protecting Power; the ministry of public health, on which the health services depend; the ministry of the interior, which is generally responsible for civil defence and the police; the ministry of transport, on which the execution of relief actions may depend etc.

    [p.968] 3384 Setting up such a programme of dissemination evidently implies the preliminary coordination between the various ministries concerned, not only for the dissemination itself, but also with regard to the allocation of responsibilities.

    ' J. de P. '


    NOTES
    (1) [(1) p.960] Universal Declaration of Human Rights, Art. 26, para. 2;

    (2) [(2) p.960] Cf. Proclamation of Teheran, para. 18, International Conference on Human Rights, May 1968;

    (3) [(3) p.960] Declaration of the principles of international cultural cooperation, made by the General Conference of UNESCO, 7 November 1966, Article II;

    (4) [(4) p.960] See, for example, the Resolution of the United Nations General Assembly on Respect for Human Rights in Armed Conflicts, of 19 December 1968 (Res. 2444 (XXIII));

    (5) [(5) p.960] Resolution of the United Nations General Assembly of 19 November 1946, drawing the attention of the Member States to the particular importance of enabling the National Red Cross and Red Crescent Societies to exercise their activity in accordance with the principles of the Geneva and Hague Conventions and in the humanitarian spirit of the Red Cross and the Red Crescent;

    (6) [(6) p.960] Resolution 21, annexed to Protocol 1, "Dissemination of knowledge of international humanitarian law applicable in armed conflicts";

    (7) [(7) p.960] See Centenary Congress, 1963, Resolution IV; XXth International Conference of the Red Cross, 1965, Resolution XXI; XXIst International Conference of the Red Cross, 1969, Resolution IX; XXIInd International Conference of the Red Cross, 1973, Resolution XII; XXIIIrd International Conference of the Red Cross, 1977, Resolution VII; XXIVth International Conference of the Red Cross, 1981, Resolution X;

    (8) [(8) p.961] See Res. 2852, "Respect for Human Rights in armed conflict", paras. 6-7 (XXVI, 1971); Res. 3032, para. 3 (XXVII, 1972; Res. 3102, paras. 5-6 (XXVIII, 1973); Res. 3500, para. 2 (XXX, 1975); res. 31/19, para. 2 (1976);

    (9) [(9) p.961] Res. 32/44, para. 7 (1977);

    (10) [(10) p.961] Cf. supra, note 8;

    (11) [(11) p.961] ' CE 1971, Report ', p. 111, para. 578;

    (12) [(12) p.961] ' CE 1972, Report ', vol. I, p. 192, para. 4.149;

    (13) [(13) p.961] See ' CE 1972, Report ', vol I, pp. 192-193, paras. 4.158-4.159, and O.R. VIII, pp. 393-398, CDDH/I/SR.37; pp. 405-408, CDDH/I/SR.38;

    (14) [(14) p.961] See O.R. VI, pp. 257-260, CDDH/SR.43;

    (15) [(15) p.961] This paragraph (Art. 72) read as follows: "3. The High Contracting Parties shall report to the depositary of the Conventions and to the International Committee of the Red Cross at intervals of four years on the measures they have taken in accordance with their obligations under this article.";

    (16) [(16) p.961] O.R. VI, p. 260, para. 122; for the explanations of vote, see also ibid., pp. 271 and 274-275;

    (17) [(17) p.962] This is not the only obligation imposed by the Protocol in time of peace. The same applies for Articles 6, 36, 80, 82, and 84. See also commentary Art. 3, supra, p. 65;

    (18) [(18) p.962] See O.R. VIII, pp. 394 and 398, CDDH/I/SR.37, paras. 59 and 86;

    (19) [(19) p.962] It should be remembered that Art. 41, para. 1, of the Third Convention and Art. 99, para. 2, of the Fourth Convention require that the text of the Convention shall be posted in a language the prisoners and internees will understand, at places where all may read them, or shall be supplied to any interested persons;

    (20) [(20) p.963] See supra note 13;

    (21) [(21) p.963] This proposal was based on Resolution XXI of the XXth International Conference of the Red Cross, which had expressed the desire that governments and National Societies should periodically report to the ICRC on the measures taken in the field of the dissemination of the Conventions. Although there were not many of these reports, some nevertheless constituted extremely detailed contributions of great interest. They were communicated, with the agreement of the governments concerned, to the participants of the XXIst and XXIInd International Conferences of the Red Cross;

    (22) [(22) p.963] See supra, p. 961 and note 15. However, see: XXIVth International Conference of the Red Cross, ' Dissemination of knowledge and teaching of International Humanitarian Law and of the Principles and Ideals of the Red Cross, Answers from Governments and National Societies to the ICRC Questionnaire ', Geneva, 1981, 246 pages;

    (23) [(23) p.963] On the occasion of the Seminar on the instruction of humanitarian law in military institutions, held in San Remo from 6-18 November 1972, the International Institute of Humanitarian Law in San Remo published an "Annexe documentaire", which to some extent answered this concern. It contains extracts from the military instruction manual of the Federal Republic of Germany, the United States Field Manual, the French Regulations on general discipline in the armies, the British Manual of Military Law, the Italian "Law of War" and the Swiss Manual on the Laws and Customs of War;

    (24) [(24) p.963] See supra, note 23;

    (25) [(25) p.963] See ' IRRC ', January 1973, pp. 47-51;

    (26) [(26) p.964] Ibid., January-February 1978, pp. 18-43 (also available as an off-print, "The Law of War and the Armed Forces", from the Henry Dunant Institute); also see the Annual Reports on ICRC activities 1980, pp. 70-71; 1981, pp. 67-68; 1982; p. 91; 1983, pp. 100-101; 1984, pp. 87-89, and Resolution XI of the XXIVth International Conference of the Red Cross;

    (27) [(27) p.964] See ' Bibliography of International Humanitarian Law Applicable in Armed Conflicts ', ICRC and Henry Dunant Institute, Geneva, 1980, pp. 285-298;

    (28) [(28) p.964] Such measures are included in the Red Cross programme of action, which will be dealt with below, in connection with the study of international humanitarian law by the civilian population. Seminars and courses are provided for members of the armed forces with the collaboration of the ICRC, the International Institute of Humanitarian Law and the Henry Dunant Institute;

    (29) [(29) p.965] See O.R. VIII, pp. 393-398, CDDH/I/SR.37;

    (30) [(30) p.965] Ibid., p. 396, para. 68;

    (31) [(31) p.966] See in particular, para. 2 of Art. 83;

    (32) [(32) p.966] In these activities the ICRC and the League also procure the assistance of the Henry Dunant Institute and extend their cooperation to specialized institutions, in particular, apart from the International Institute of Humanitarian Law in San Remo, the International Institute of Human Rights (Strasbourg), UNESCO, the Commission m├ędico-juridique de Monaco, etc.;

    (33) [(33) p.966] There is a complete account of the activities carried out in this field by the ICRC and by the League during the years following the end of the Diplomatic Conference, in the reports on ICRC activities (see also Resolution X of the XXIVth International Conference of the Red Cross), as well as in the ' IRRC ', November-December 1983, pp. 338-359;

    (34) [(34) p.966] See also supra, p. 931, ad Art. 80;

    (35) [(35) p.967] Third Convention, Art. 127, para. 2, and Fourth Convention, Art. 144, para. 2, for the general obligation, and for camp commanders, Third Convention, Art. 39, para. 1, and Fourth Convention, Art. 99, para. 1;

    (36) [(36) p.967] In the case of intervention by the United Nations forces, the governments of the countries which furnish contingents must give their troops adequate training on the Conventions and the Protocols before they leave their home country. (Cf. Resolution XXV of the XXth International Conference of the Red Cross, and D. Schindler, "United Nations Forces and International Humanitarian Law", in ' Studies and Essays in Honour of Jean Pictet ', op. cit., p. 524.);

    (37) [(37) p.967] Cf. Vienna Convention on the Law of Treaties, Art. 31, para. 1;