General problems in implementing the Fourth Geneva Convention: preliminary statement
Meeting of experts, Geneva 27-29 October 1998. Statement by Yves Sandoz, Head of the delegation
Mr Chairman, Distinguished Delegates,
It is a privilege for me to speak on behalf the International Committee of the Red Cross (ICRC) at the opening of this meeting, and I thank you for giving me the floor.
Although the ICRC was not involved in the process that led the Swiss Government to convene this gathering and to define its framework and procedures, the organisation agreed to draw up, in a very short period of time, a report setting out the general problems that arise in implementing the Fourth Geneva Convention. Indeed, the ICRC feels that it is now necessary to examine such problems, whatever other meetings might be held on specific situations in other fora. It regarded this as a crucial opportunity, the more so since the international community has entrusted it with a general mandate " to work for the faithful application of international humanitarian law " .
The report you have before you focuses on the broad issues relating to the application of the Fourth Convention and on points to which we felt priority should be given. While the document does not pretend to contain an exhaustive description of all the problems involved, the subject matter covered will nevertheless provide food for a substantive debate. We therefore sincerely hope that the discussions will proceed in the best possible conditions, so as to enable the participants to clearly identify where the problems lie and to advance in the search for practical solutions capable of improving the plight of the victims. We shall therefore follow the proceedings with the utmost interest, bearing in mind the need to find such solutions and concerned that all the work done to prepare and ensure the smooth runn ing of this meeting should finally serve the interests of all those whose treatment does not meet the requirements of international humanitarian law in general and of the Fourth Geneva Convention in particular.
The ICRC for its part stands ready to fulfil the role it was asked to play and to comply with the directives it received for this meeting. We are here in our capacity as experts in international humanitarian law; we are thus prepared-to offer any explanations and advice on this body of law that may be needed to clarify certain problems of a general nature, and even to help find solutions to them. However, we are not here as witnesses of almost every conflict situation in the world, and although our report is based on practical experience, we do not intend in this forum to enter into any description of specific situations or to engage in any controversial debate on the facts involved.
Allow me to highlight a few features of the report that the ICRC has submitted to your attention.
We consider it important at the beginning of this meeting to reaffirm what constitutes the very essence of international humanitarian law, namely to preserve at least a measure of humanity in the midst of all conflicts, independently of any political consideration and regardless of the controversy that gave rise to the fighting. Recognition of this fundamental tenet is essential, because the establishment of a link between the origin of a conflict and humanitarian action would very soon render such action unacceptable to at least one of the warring parties, to the detriment of all the victims of the conflict. That necessary separation is especially difficult to achieve in practice when it comes to the Fourth Convention, because the applicability of this treaty - more than that of other instruments of international humanitarian law - frequently gives rise to political controversy. The Fourth Conventio n was a major breakthrough achieved by the Diplomatic Conference of 1949. Efforts had already been made in the period spanning the First and Second World Wars to increase the protection of civilians in times of war, but the various proposals put forward came to nothing, and it took the horrors experienced in the Second World War to convince everyone of the vital need for a new treaty specifically designed to ensure the protection of the civilian population.
In most situations defined as occupation, even by the great majority of States, it has been observed that the party defined as the occupying power takes issue over such a definition, thereby contesting its obligation to apply the Convention. It is thus the very essence of that Convention - which is to preserve the physical, social and cultural integrity of civilians - that is called into question, particularly in occupied territory, by a party that denies the applicability of the treaty and refuses to acknowledge the relationship that exists between an occupying power and a population under occupation.
There is no simple answer to the problem, which, as emphasised in the ICRC's report, constitutes the veritable " Achilles'heel " of international humanitarian law, and is a realm in which it is very difficult to separate humanitarian questions from political issues. We therefore want to make a few general observations that are more or less directly related to this problem.
First, the fact that there is often difficulty in acknowledging the applicability of international humanitarian law demonstrates that the contribution made by this body of law towards alleviating some of the untold suffering endured by civilians does not in any way relieve the international community of its obligation to take a clear stand on situations that threaten world peace. The international community's failure to adopt a firm position when it comes to defining certain situations, the lack o f an undisputedly recognised mediator, and the ambiguity that is sometimes wilfully maintained in order to serve the short-term interests of certain parties seriously jeopardise the efforts of those who struggle to ensure respect for international humanitarian law. Indeed, all of this contributes to making a political issue of decisions concerning application of this body of law - in other words it leads to the politicisation of what should precisely never be the object of political considerations.
In this connection, it should be pointed out that international humanitarian law is not designed to apply to long-term situations, but to help as best it can in alleviating the suffering caused by a conflict before a political settlement is reached. A situation that becomes deadlocked because no political solution has emerged inevitably entails negative consequences for the population concerned and very often leads to despair and extremism that can only undermine the fundamental humanitarian rules. Although problem situations may sadly go on for years on end, it is nevertheless crucial to do everything possible to combat the erosion of international humanitarian law. The question of the point at which application ceases, as discussed in the report, and the periods during which political solutions are being negotiated must always be considered in the light of the victims'best interests and of the inalienable nature of fundamental rights, which also derive from human rights law.
A third comment I should like to make is that the issue of the suffering endured by the civilian population is in no way linked to formal recognition of the applicability of the Conventions. The suffering of a population that views as unjust the presence of what it regards as a foreign military power, the protection of that population and particularly those of its members who are being held in detention, the need to preserve the population's social and cultural identity, the res entment that may arise on account of the presence of nationals of the party regarded as hostile and the ensuing security problems are all issues that exist independently of the legal disputes that may arise in connection with a given situation. It is therefore crucial to put a rapid end to a sterile debate on the issue of applicability and to acknowledge the practical problems listed in the Fourth Convention. The uncertainty surrounding the legal debate must not become a pretext for all kinds of abuse or a reason for hampering humanitarian action.
This reminder leads me to make a fourth comment, which is that the provisions of international humanitarian law are inalienable in character, and disputes over their applicability should not lead to any kind of " bargaining " : indeed, no special agreement should be reached that will jeopardise the situation of protected persons, who, besides, are in no way entitled to give up their rights. This is an extremely judicious guarantee established by the Convention to forestall any pressure to which such persons might be subjected.
Finally I wish to emphasise that security imperatives, which must obviously be taken into account, are incorporated in international humanitarian law. They must thus not serve as an excuse to overstep the limits set by the community of States that drew up this body of law nor justify an approach to the humanitarian treaties based on specific situations.
With your permission, Mr Chairman, I should now like to highlight a number of points set out in the report that are more specifically linked to certain aspects of the Fourth Convention.
As regards aliens on the territory of the adverse party and refugees on the territory of one of the parties in the early stages of an armed conflict, it is important to vigorously reaffirm, in addition to the protection to which such individuals are entitled under the law, the substance and essence of the principle of non-refoulement, in other words the prohibition against transferring a person to a country where he may have reason to fear persecution for his political opinions or religious beliefs. There is all too often a tendency to transfer persons whose presence is considered troublesome, without consideration for this basic principle.
Concerning the general protection of civilians, it is extremely regrettable that attention must still be drawn to the applicability at all times, in particular during armed conflicts, of such fundamental rules as the prohibition of torture and ill-treatment, hostage-taking, pillage, murder and rape, and that such acts continue to be committed on a large scale.
The report also focuses on the highly sensitive issue of forced population movements, which are strictly prohibited in all circumstances except where required to ensure the safety of protected persons or for reasons of military necessity. Despite this prohibition, such displacement is often set in motion for other purposes, in particular as a means of evacuating people from certain parts of a territory on the basis of ethnic, racial or religious considerations, or even as a means of pure repression. It is therefore essential to remain extremely vigilant with regard to acts that run counter to fundamental principles of international humanitarian law and basic human rights.
It should also be pointed out that the establishment of various protected zones provided for under international humanitarian law has led to the further development of this concept and to a search for new types of protected zone. However, too little attention has been paid to the fact that, under humanitarian law, such zones may not be set up without the consent of the parties to a conflict, which are in principle responsible for ensuring the safety of all persons residing in any area situated within the t erritories under their control. Protected zones that have not been agreed to by the parties require an extensive military presence and should therefore not be established unless the means – in particular the military means - necessary to ensure the safety of the population residing there are simultaneously made available. Such protected zones are not set up pursuant to the provisions of international humanitarian law but on the basis of political and military decisions. Failure to grasp this essential distinction has had extremely serious consequences, since in certain cases zones that were intended to provide a refuge for the population became highly dangerous places instead. This must be borne in mind in any efforts to devise new means of protecting the civilian population.
Lastly, we should like to draw attention to the importance given under international humanitarian law, in particular under various rules contained in the Protocols additional to the Geneva Conventions, to the responsibility borne by the parties to a conflict for ensuring the provision of goods essential to the survival of the civilian population of the territories under their control, including their own population, in particular by authorising international relief operations wherever necessary.
This obligation is all the greater in the case of occupied territories. Indeed, the aim of the Fourth Convention is to enable, in so far as security imperatives permit, the civilian population to continue leading a normal life, in particular to maintain its social and cultural habits and, wherever possible, to respect its laws and customs. The rules relative to this aim derive in particular from the notion that occupation is a temporary situation, and they are therefore ill adapted to circumstances in which the occupying power's intention is to stay on indefinitely. This general remark brings us to discuss various issues relating to the specific situation of occupied territories. In addition to the a forementioned outrages, such as torture, hostage-taking, rape and pillage, which are frequently committed against the population of occupied territories and whose unlawful nature is egregious, all manner of persecution may be inflicted with a view to intimidating civilians and depriving them of the full enjoyment of their rights. In particular, administrative measures intended to prevent people from obtaining certain services are often deliberately put in place as a means of exerting pressure or inducing submission. The same is true of various measures, such as the destruction of material objects or the displacement of the population, which are strictly limited by the law to those required for security reasons, but are often unlawfully adopted for repressive or expansionist purposes.
It was also in order to eradicate policies of unrestrained colonialization and annexation, such as those which characterised the Second World War, that the transfer of a State's own population into an occupied territory was prohibited. However, such transfers remain commonplace today and it is therefore essential to underscore, in addition to their political dimensions, the fact that they inevitably give rise to acts of discrimination, serious problems in humanitarian terms and a general deterioration of the climate in the affected territories.
With your permission, Mr Chairman, I should now like to say a few words about the problem of detention. The internment of civilians may concern both protected persons who find themselves in the territory of a party to a conflict and those who are in occupied territory. In any event, strict limitations have been placed on internment, which cannot be arbitary. An absolute prohibition exists against torture and ill-treatment, which are nevertheless prevalent in many prisons, and it is to be deplored that the old issue of security and torture must be thrashed out over and over again. Emphasis should also be placed on the terrible psyc hological suffering that detainees and their families undergo in cases of administrative detention, which can last for an indefinite period or be prolonged arbitrarily. It is essential in such cases that contact be maintained between the detainees and their families, and internment camps must therefore be set up close to where the families are living. In this connection it should be borne in mind that the Fourth Convention stipulates that detainees from an occupied territory must be held within that territory.
International humanitarian law no doubt suffers from certain shortcomings, including a number of grey areas, but the main problem lies elsewhere. What we need to concern ourselves with today is the widespread failure to respect the existing rules of humanitarian law and the need to ensure greater respect for them. In this report, we have endeavoured to highlight the tools already available for this purpose, some of which, including Protecting Powers and the International fact-finding Commission, have virtually remained a dead letter. Should these tools be reactivated or should new ones be created? We believe that it would be useful to have an open and honest debate on this subject during the present meeting, in particular taking into account the setting-up of the new International Criminal Court. Indeed, we now have reason to hope that major war criminals will one day be systematically punished and that potential war criminals will be discouraged from flouting the international community by deliberately violating the law. Although we must not underplay the serious nature of violations of international humanitarian law, we must nevertheless avoid going to the other extreme and giving in to total pessimism. The Fourth Convention clearly has the merit of setting certain standards and, while failure to respect its rules is glaring in many contexts, we must acknowledge that its rules nevertheless remain a basis for humanitarian dialogue and that they have saved more lives and prevented more suffering than may be readily apparent. Moreover, the ICRC's offers of services have been accepted by the parties to the vast majority of conflicts in the world, thereby enabling it to conduct large-scale operations to protect and assist the victims of these situations, often with the support of National Red Cross or Red Crescent Societies. Many other organisations, whether international or non-governmental, have also been able to carry out humanitarian activities in these contexts.
Nevertheless, we are particularly concerned by the fact that violations, in particular of the Fourth Convention, are not simply committed on an occasional basis by individuals who must be taken to task over their behaviour, but are also perpetrated in a systematic manner as part of deliberate policies devised at the highest level and intended to force population groups to submit to force or move elsewhere.
This brings me to my last point, which consists of five recommendations that we consider essential for this meeting to take into account.
- First of all, it is important not to let the issues that underlie conflicts fester and go unresolved, since this almost inevitably leads to violations of international humanitarian law and to the erosion of its fundamental values.
- Secondly, the principle of good faith, which is a key to genuine humanitarian dialogue, must be preserved at all costs.
- Thirdly, every effort must be made to avoid disputes over the applicability of international humanitarian law, since these can be used as a pretext for introducing derogations from fundamental rules and give rise to bargaining over substantive legal issues.
- Fo urthly, States must take international humanitarian law seriously and demonstrate this in peacetime, both at the national level by taking legislative and other measures necessary for its implementation, and at the international level by adhering to the humanitarian law treaties and by examining ways in which they can better meet the collective obligation to ensure respect for the law in all circumstances.
- Lastly, every possible avenue must be explored to bring about greater compliance with international humanitarian law: every step forward counts, no matter how small, and no stone must be left unturned in the endeavour to alleviate the suffering of all victims of armed conflict.
Mr Chairman, Distinguished Delegates,
Allow me to conclude by expressing the hope that your deliberations will lead to an improvement in the daily lives of the countless men, women and children who are suffering as we talk. I ask you to think of them above all in the coming days so that, despite the deep emotions that the tragic problems to be discussed inevitably evoke, this meeting will have tangible results.
Thank you for your attention.
Ref. : LG 1998-093-ENG