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Commentary - Co-operation
    [p.1031] Article 89 -- Co-operation


    [p.1032] General remarks

    3585 This article resulted from a discussion which was essentially concerned with reprisals, (2) but it does not deal with that subject either explicitly or implicitly. Nevertheless, together with other articles of the Conventions and of the Protocol, it should help to make reprisals unnecessary, even in situations where they are not explicitly prohibited. Like provisions concerned with the individual and collective responsibility of the Contracting Parties, the mechanisms for execution and supervision, fact-finding and repression, this article actually has as its purpose the ensuring of respect for the law, and more especially, the prevention of breaches being answered by further breaches. (3)

    3586 Despite the very general wording of its heading, this article refers only to co-operation with the United Nations. This is in addition to other forms of cooperation between Contracting Parties, such as Article 1 ' (General principles and scope of application '), (4) in which the Contracting Parties undertake to respect and to ' ensure respect ' for the Protocol in all circumstances; Article 7 ' (Meetings), ' which provides for meetings of the Contracting Parties to consider general problems concerning the application of the Conventions and of the Protocol; the provisions concerning the repression of breaches, in particular those calling for the greatest measure of mutual assistance in criminal matters. (5)

    3587 This provision results from a proposal which was considered at the same time as two other proposals explicitly relating to reprisals. (6) As the Working Group was unable to agree on a single text, the present wording was returned to the Committee together with other proposals; (7) when these were withdrawn, it was adopted in Committee after a vote. (8) The plenary Conference also adopted it after a vote. (9) Both in Committee and in the plenary Conference several delegations regretted that this provision was not considered and discussed in greater detail. (10)

    [p.1033] Situations envisaged

    3588 The meaning of the words "in situations of serious violations of the Conventions or of this Protocol" was not elucidated during the Conference. The expression "serious violations" is only used in one other place in the Protocol, viz., in Article 90 ' (International Fact-Finding Commission), ' paragraph 2(c)(i) (11)

    3589 The system of the Conventions and the Protocol requires that the Contracting Parties suppress any act or omission contrary to the provisions of these instruments; furthermore they must impose penal sanctions on conduct defined by these same instruments as "grave breaches". (12)

    3590 The terms "violation" and "breach" may be considered to be synonymous, and both cover any conduct -- both acts and omissions -- contrary to the Conventions or the Protocol. Does this mea that the expressions "grave breaches" and "serious violations" are also synonymous?

    3591 The principal elements of the answer can be found in Article 90 ' (International Fact-Finding Commission), ' of which the above-mentioned paragraph 2(c)(i) distinguishes grave breaches as ' defined ' in the Conventions and the Protocol, and other serious violations ' of ' the Conventions or ' of ' the Protocol. The latter term therefore refers to conduct contrary to these instruments whichs of a serious nature but which is not included as such in the list of "grave breaches".

    3592 We do not need to have in mind exactly what conduct could fall under this definition, to be able nevertheless to distinguish three categories that qualify:

    -- isolated instances of conduct, not included amongst the grave breaches, but nevertheless of a serious nature. (13)
    -- conduct which is not included amongst the grave breaches, but which takes on a serious nature because of the frequency of the individual acts committed or because of the systematic repetition thereof or because of circumstances;
    -- "global" violations, for example, acts whereby a particular situation, a territory or a whole category of persons or objects is withdrawn from the application of the Conventions or the Protocol.

    3593 In this article, as in the above-mentioned Article 90 ' (International Fact-Finding Commission), ' the situations envisaged are undeniably those of grave breaches or [p.1034] other serious violations. Nevertheless, it is not concerned with situations where the wrongful conduct remains rare and isolated, so that other mechanisms expressly established for prevention, supervision and repression are to be adequate.

    Addressees

    3594 The article prescribes for all Contracting Parties, and not only those who are Members of the United Nations, that they should act in those situations in cooperation with the Organization and in conformity with its Charter. (14) Thus there will be States bound by the Protocol and this article who are not Members of the United Nations. (15) It should be noted that the United Nations, by virtue of the Charter, must ensure that States which are not Members act in accordance with the principles laid down in Article 2 of the United Nations Charter "so far as may be necessary for the maintenance of international peace and security". (16) furthermore, without referring to the observer status they may enjoy, States which are not Members may still bring certain questions before the United Nations or participate in certain discussions. (17)

    Prescribed action

    3595 The wording of this article follows ' mutatis mutandis ' Article 56 of the United Nations Charter which is aimed at co-operation for the achievement of universal respect for, and observance of, human rights and fundamental freedoms for all with a view to ensuring peaceful and friendly relations among nations. The scope of application of such co-operation is obviously more restricted here, since it is concerned with situations covered by the Conventions and the Protocol, but it is no less justified.

    3596 Acting for the protection of man, also in time of armed conflict, (18) accords with the aims of the United Nations no less than does the maintenance of international peace and security. (19) The Organization showed its concern in two main ways: first, by its participation in the process of reaffirming and developing international humanitarian law; (20) secondly, by its resolutions on the applicability of humanitarian law and requiring its application to given situations or categories of persons, and also by issuing reports evaluating the application and respect of that law.

    [p.1035] 3597 The United Nations actions to which Article 89 refers may therefore consist of issuing an appeal to respect humanitarian law, just as well as, for example, setting up enquiries on compliance with the Conventions and the Protocol and even, where appropriate, of coercive actions which may include the use of armed force. (21) United Nations actions may also take the form of assistance in terms of material or personnel, given to Protecting Powers, their substitutes or to humanitarian organizations.

    3598 This article is without prejudice to any of the provisions of the United Nations Charter to which reference is made. The Protocol, as stated in its Preamble, does not authorize any threat or use of force inconsistent with the United Nations Charter. (22) Consequently the Protocol does not impair the right of individual or collective self-defence as recognized under Article 51 of the United Nations harter until such time as the Security Council may have taken the necessary measures to maintain peace. Any use of force, individual or collective, even when consistent with the Charter, is subject to the rules of international law applicable in armed conflict, in particular those codified in the Conventions and the Protocol. (23)

    3599 Except for States bound by the Protocol which are not Members of the United Nations, this article does not create new law. It leaves intact the right of States to individual or collective self-defence as laid down in Article 51 of the United Nations Charter while respecting international humanitarian law. It is a reminder that, in addition to maintaining international peace and security, the United Nations is concerned with respect for human rights, also in time of armed conflict.

    ' B.Z. '


    NOTES (2) [(2) p.1032] On reprisals in general and for a summary of this debate, cf. introduction to this Section, supra, pp. 982-987;

    (3) [(3) p.1032] Further information on this article may be found in the following works referred to in the introduction to this Section (supra, p. 973, note 2): E.J .Roucounas, op. cit., p. 138; B.V.A. Röling, "Aspects of the Criminal Responsibility...", op. cit., p. 213. Also see L. Condorelli and L. Boisson de Chazournes, op. cit., pp. 31 and 34;

    (4) [(4) p.1032] Art. 1, para. 1, Protocol I; Art. 1 common to the Conventions;

    (5) [(5) p.1032] Conventions, Art. 49,50/50, 51/129, 130/146, 147; Protocol, Art. 85, para. 1, and Art. 88;

    (6) [(6) p.1032] O.R. III, p. 304, CDDH/I/74; p. 313, CDDH/III/103; p. 323, CDDH/I/221;

    (7) [(7) p.1032] Ibid., p. 304, note ad CDDH/I/74; pp. 305-306, CDDH/I/348; p. 324, CDHD/I/221/Rev.1. O.R. X, pp. 217-219, CDDH/405/Rev.1, Annex II (CDDH/I/349/Rev. 1), paras. 3-12;

    (8) [(8) p.1032] O.R. IX pp. 417-418 CDDH/I/SR.72, paras. 2-7; vote: 41-18-17;

    (9) [(9) p.1032] O.R. VI, p. 348, CDDH/SR.46, para. 53; vote: 50-3-40;

    (10) [(10) p.1032] Thus O.R. IX, p. 447, CDDH/I/SR.73, Annex (Indonesia); p. 458 (Yugoslavia); O.R. VI, pp. 348-349, CDDH/SR.46, paras. 54 and 56; pp. 370-377, id., Annex (France, India, Indonesia, Italy); p. 382 (Peru);

    (11) [(11) p.1033] The word "violation", which is also found in the Conventions (Art. 52/53/132/149) appears several times in the Protocol, for example, in Art. 51 (para. 8), 85 (para. 4), 87 (para. 3, which uses "breach" and "violation" synonymously) and 90 (para. 2). The expression "material breach" is used in Article 60 (para. 7) and the verb "violates" in Article 91. Finally, the expression "in violation of" is used four times in Article 85 (paras. 3 and 4);

    (12) [(12) p.1033] Conventions, articles mentioned supra, note 5; Protocol, Arts. 85-86. On the repression of breaches in general, cf. introduction to this Section, supra, pp. 973-977;

    (13) [(13) p.1033] Cf. For example introduction to this Section, supra, p. 976, note 11, and commentary Art. 85, supra, p. 991 and note 4;

    (14) [(14) p.1034] For a complete list of references in the Protocol to the United Nations, its Charter and its signs, emblems and uniforms, cf. commentary Preamble, supra, p. 26, note 8;

    (15) [(15) p.1034] As of 31 December 1984 these were the Republic of Korea and Switzerland; these States did not make reservations or declarations on this article;

    (16) [(16) p.1034] Charter of the United Nations, Art. 2, para. 6;

    (17) [(17) p.1034] Ibid., Art. 11, para. 2, and Arts. 32, 35 and 50;

    (18) [(18) p.1034] Cf. the resolutions of the General Assembly and reports of the Secretary-General entitled Respect for human rights in armed conflict" (cf. infra, pp. 1573-1576);

    (19) [(19) p.1034] United Nations Charter, Preamble and Art. 1;

    (20) [(20) p.1034] Cf. references given supra, note 18;

    (21) [(21) p.1035] Relevant articles of the Charter: (a) General Assembly: 10, 11 (paras. 2 and 3), 12, 14 and 15; (b) Security Council: 24, 39-51. In addition, the General Assembly, in its Resolution 377 (V) of 1950 ("Uniting for Peace"), confirmed its competence to recommend collective measures, including the use of armed force when necessary, if the Security Council because of lack of unanimity fails to act where there appears to be a threat to the peace, breach of the peace, or act of aggression;

    (22) [(22) p.1035] In any case this would be inconceivable in view of Art. 103 of the United Nations Charter: obligations of Members under the Charter prevail over those under any other international agreement. We refer also to the Vienna Convention on the Law of Treaties of 23 May 1969, Arts. 30 (para. 1) and 31 (para. 3(c));

    (23) [(23) p.1035] On the applicability of the law of armed conflict to United Nations forces, cf. F. Seyersted, op. cit.; Y.Sandoz, "The Application of Humanitarian Law by the Armed Forces of the United Nations Organization", IRRC, Sept.-Oct. 1978, p. 274; D. Schindler, "United Nations Forces and International Humanitarian Law", op. cit., p. 521;