General problems in implementing the Fourth Geneva Convention
Meeting of Experts, Geneva, 27 - 29 October 1998. Report by the International Committee of the Red Cross
Switzerland has invited the States party to the 1949 Geneva Conventions to meet in order to study the general problems that arise in connection with implementation of the Geneva Convention relative to the protection of civilian persons in time of war (hereafter the Fourth Convention). Given the specific role entrusted to the International Committee of the Red Cross (ICRC) with regard to international humanitarian law, the Swiss Federal Department of Foreign Affairs has asked the organization to draw up a text setting out the general problems encountered in implementing the Fourth Convention.
The present document does not pretend to contain an exhaustive list of the problems relating to implementation of the Fourth Convention, but rather concentrates on a number of points to which it is felt that priority should be given. The observations made are based on the armed conflicts that have taken place since the entry into force of the Convention.
The present report contains seven sections. The first recalls the foundations on which the Fourth Convention is based and provides a general description of its provisions, for the ICRC has observed that it is often the spirit of the Convention itself that is poorly interpreted (see section 1).
The second section deals with the sensitive issue of the Fourth Convention's applicability, as differences over the definition of specific situations frequently hinder the implementation of international humanitarian law.
The ensuing sections deal with subjects in the order in which they arise in the provisions of the Convention itself: the protection of civilians (section 3), including both general protection of civilians against certain consequences of war, and provisions common to the territories of the parties to the conflict and to occupied territories; foreign nationals in the territory of a party to the conflict (section 4); occupied territories (section 5); and the treatment of civilian internees (section 6).
Finally, the implementation of its provisions is a major challenge for international humanitarian law, and the last section (section 7) briefly discusses the need for national legislation, the need to make the Fourth Convention's provisions better known and the need to strengthen mechanisms to monitor implementation and repress serious violations.
1. Origin and spirit of the 1949 Geneva Convention relative to the protection of civilian persons in time of war
1 (a) Why a fourth Geneva Convention?
Before the Second World War, the Geneva Conventions protected only wounded, sick, shipwrecked or captured combatants. But then civilians became the main victims of armed conflict, the target of all manner of excesses such as mass extermination, indiscriminate attack, deportation, hostage-taking, pillage and internment.
The provisions of the Regulations annexed to the Hague Convention (No. IV) of 1907 served as the customa ry law basis for the International Military Tribunal in Nuremberg to convict those responsible for atrocities committed during the Second World War. But the Hague Regulations provided protection to civilians under the control of the adverse party only in terms of certain aspects of enemy occupation of a territory, without affording civilians more general protection against the risks arising from warfare. Though the provisions of the Hague Regulations remain relevant today, they were extensively developed by the Fourth Convention[1 ] , which has itself become customary law.
While the three other Conventions [2 ] adopted in Geneva in 1949 were basically developments of earlier texts, the Fourth Convention represented an innovation in that it protects " persons taking no active part in the hostilities " and " 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. 3 and 4).
The main purpose of the Fourth Convention is to protect civilians under the control of an enemy State against arbitrary action by that State. However, it contains no detailed provisions for the protection of the civilian population against the dangers caused by military operations such as aerial bombardment and shelling. This gap was later filled by Protocol I additional to the Geneva Conventions.[3 ]
Article 4 defines in detail the categories of persons protected by the Convention. These are nationals of an enemy State who find themselves in the territory of a belligerent State and the inhabitants of occupied territory. However, nationals of a neutral State or of a co-belligerent State are not regarded as protected by the Fourth Convention while the State of which they are nationals has diplomatic relations with the State under whose control they find themselves.[4 ]
Certain provisions of the Fourth Convention apply in equal measure to the warring parties'own territory and to occupied territories. In particular, these are the provisions governing general treatment of the population and those regarding internees. Other provisions are specific to one case or the other. The Fourth Convention specifies the rights and duties of the Occupying Power with regard to the population of the territory occupied by it.
The Fourth Convention is based on the universally accepted principle requiring the parties to conflict to ensure that, despite occupation and war, the people living in an occupied territory or foreign nationals living in the territory of a party to conflict can continue to live in as normal a manner as possible and in accordance with their laws, their culture and their traditions.
1 (b) The Fourth Convention and human rights law
It should be stressed that in wartime international humanitarian law coexists with human rights law, certain provisions of which cannot be derogated from.[5 ]
Protecting the individual vis-à-vis the enemy (as opposed to protecting the individual vis-à-vis his own authorities) is one of the characteristics of the law of armed conflicts. A State at war cannot use the conflict as a pretext for ignoring the provisions of that law, wich is by definition applicable to extraordinary situations.
International humanitarian law gives due consideration to military imperatives and seeks to reconcile military necessity with the demands of humanity. Over the centuries this law has been gradually adjusted to take account of the realities of war. It is precisely for that reason that it does not provide for general derogation, and that is part of its strength.
The Fourth Convention contains a number of concessions to State secu rity, military necessity and other requirements of national interest. While these provisions allow a degree of latitude within the limits set by the Conventions, the general principles of law, in particular that of proportionality, obviously continue to apply.
Generally speaking, the States party to the Fourth Convention are required to respect the principle of pacta sunt servanda [6 ] and to interpret the treaty in good faith, ensuring that both the letter and the spirit are implemented. In confronting any problem not expressly dealt with in 1949, the States Parties must act in the spirit of the Fourth Convention and the "Martens clause". [7 ]
2. Applicability of the Fourth Convention
2 (a) Field of application and applicability
2 (a) (i) The principles
The Fourth Convention " 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, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no formal resistance " (Art. 2).
The States wished to give the Convention a broad field of application in order to ensure civilians as extensive a degree of protection as possible. The key requirement here is that people find themselves in the hands of a State of which they are not nationals " at a given moment and in any manner whatsoever " (Art. 4) in the course of an armed conflict or the occupati on of a territory, even if that occupation meets with no armed resistance.
" As soon as one of the conditions of application for which Article 2 provides, is present, no Contracting Party can offer any valid pretext, legal or otherwise, for not respecting the Convention in its entirety. ('In all circumstances') also means that the application of the Convention does not depend on the character of the conflict. " [8 ]
The specification that an armed conflict need not necessarily be preceded by a declaration of war was included to take account of new characteristics of conflict and in order to ensure that the States would not be able to shirk their humanitarian obligations.[9 ]
The second paragraph of Article 2 covers situations in which territory is occupied without a declaration of war and without hostilities, other circumstances of occupation having already been covered in the first paragraph. The Convention becomes applicable to protected persons as soon as they come under the control of the occupying force.
2 (a) (ii) The practice
The issue of the Fourth Convention's applicability is crucial, and failure to acknowledge its applicability currently constitutes a major obstacle to effective protection for civilian victims of conflict.
Indeed, refusal to recognize the Fourth Convention's applicability is that instrument's major weak point: when confronted with situations in which the Convention should be applied, the States party to it almost invariably cite some grounds or other on which, in their view, it is not applicable.
Defining the legal nature of a situation is a legal matter. Unfortunately, this often becomes a political exercise. Thus, the essential problem regarding that definition is to be found neither in th e legal nor the humanitarian realm but rather in the political arena. It would therefore be unfair to make a humanitarian organization bear the burden of full responsibility for the legal definition of a situation. That task belongs above all to States.
States have repeatedly denied their involvement in conflict, refusing to recognize that the situation has become internationalized and thus that the Fourth Convention is applicable. The unclear legal status of certain territories, claims to rights over such territories, the annexation of an adversary's territory or the reclaiming of territory viewed as having been wrongly appropriated by another State – all have on various occasions served as further excuses for refusing to acknowledge the Fourth Convention's applicability, as have the reasons advanced for actually denying the existence of a conflict, such as the struggle against terrorism, the need to carry out a police operation in order to resolve a political crisis, and intervention in response to an appeal from an allied country.
Certain belligerents have agreed only to de facto application of the Fourth Convention, at times making even that conditional upon reciprocity. What counts is actual protection for the victims of armed conflict. However, it would be unacceptable to allow – still less encourage – a set of parallel rules to be established, a sort of sub-category of the law, which might or might not be respected, according to the whims of the party applying it, despite the fact that the States have categorically committed themselves to recognizing legal texts that set out precise rights and obligations. Political considerations should under no circumstances be allowed to weaken the protection to be enjoyed by civilians under hard law.
The attitudes described above should be of great concern to all the States party to the Geneva Conventions. After all, these Sta tes sought the adoption of – and undertook to comply with – the terms of Article 1 of the Fourth Convention, i.e. " to respect and to ensure respect for the present Convention " .[10 ]
The fact cannot be ignored, however, that the States party to the Geneva Conventions only rarely shoulder their responsibility when it comes to defining a situation and recognizing the applicability of international humanitarian law. The United Nations Security Council, the UN General Assembly and the International Court of Justice have on occasion made pronouncements on these subjects, but not in a systematic manner.
2 (b) When application ceases
Article 6 of the Fourth Convention specifies the point at which its application ceases. In situations other than occupation, defining that point is sometimes a matter of interpretation. Depending on that interpretation, serious consequences from a humanitarian viewpoint may be inflicted on those who are supposed to be protected by the Fourth Convention. Experience shows that armed conflicts rarely stop from one moment to the next. A period of'neither war nor peace'can go on for years. Though provisional agreements are sometimes concluded during that time, individual freedom of movement continues to be limited, internally displaced people and refugees are slow in returning to their homes, and detainees continue to be held.
When a political settlement is being worked out, the basic principles of international humanitarian law should not be forgotten as a legal vacuum might then result to the detriment of those protected by that law. The fact that signatures have been placed under political agreements unfortunately does not mean that all matters of humanitarian concern can instantly be resolved.
Generally speaking, Article 6 of the Fourth Convention sets the cessation of its application in the territory of the warring parties at the general close of military operations. In occupied territory, that application ceases one year after the general close of military operations, [11 ] but if the occupation continues beyond that date and if the Occupying Power exercises the functions of government in that territory, that Power remains bound by numerous provisions until the occupation ends.
In cases where a territory is occupied, the application of international humanitarian law, in particular the Fourth Convention, ceases only with the effective end of occupation or with a comprehensive political settlement of the dispute, in accordance with the rules of general international law. Until this occurs, it should be recalled that the drafting States insisted that no derogation be possible from the rights guaranteed by the Fourth Convention. Article 7 states 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 " , while Article 8 makes those rights inalienable at the level of the individual.
In particular, a question has arisen as to how to interpret paragraph 4 of Article 6 ( " Protected persons whose release, repatriation or re-establishment may take place after such dates shall meanwhile continue to benefit by the present Convention. " ).
In cases where only isolated and sporadic hostile acts have occurred between two States, can any person who remains in detention, has not been repatriated or not re-established truly benefit from the protection provided by Article 6? For example, can a detainee remain a protected person until his release though he was detained well before the Fourth Convention became applicable?
3. Protecting the civilian population
3 (a) General protection of civilians against certain consequences of war
The Fourth Convention does not confine itself to laying down rules governing the situation of persons who find themselves under the adversary's control. One of its purposes is also to provide a degree of protection to the entire population of the warring parties. Part II sets out basic principles aimed at alleviating the suffering caused by war and at sheltering from the effects of the fighting those persons who, by definition, take no part in the hostilities.[12 ]
3 (a) (i) Protecting the wounded and the sick
Certain persons – in particular the injured, the sick, the infirm and expectant mothers – deserve special attention owing to their weakness or their vulnerability (Art. 16). Articles 18 to 23 specify that neither civilian hospitals, their staff nor vehicles carrying the wounded or sick may be made the object of attack. For their protection they may use one of the distinctive emblems specified in Article 38 of the First Geneva Convention.[13 ]
Indiscriminate attacks have nevertheless frequently occurred. There have even been attacks deliberately carried out on hospitals and medical personnel. Thus, neither the wounded nor the other above-mentioned categories have been effectively protected from violence.
The Fourth Convention encourages the parties to conflict to make arrangements for the evacuation of vulnerable individuals or to facilitate the passage of medical staff and equipment and ministers of religion (Art. 17). Though in practice the warring parties have often allowed civilians to flee dangerous areas by opening corridors for that purpose, those groups have unfortunately not always bee n allowed to return afterwards. Indeed, the purpose of the operation has more often been to force them to leave the area rather than to ensure their safety.
3 (a) (ii) Protected zones
Civilians enjoy general protection under international humanitarian law. Nevertheless, Articles 14 and 15 of the Fourth Convention provide for different types of protected zones intended to shelter people from attack. These are the hospital and safety zones and localities set out in Article 14 and the neutralized zones in Article 15. The differences between them relate to the individuals intended to be protected by them, the period of neutralization and their location.
The zones provided for by humanitarian law must be set up by joint agreement between the warring parties and they may not have defences. Since military objectives and persons taking part in the hostilities must remain outside their perimeters, these zones do not represent any threat to the warring parties.
Though established in accordance with the conditions laid down for them, in particular that of joint agreement between the parties, such protected zones have been hit by indiscriminate aerial bombardment and shelling and have been the object of attack and incursion by troops who have victimized the protected persons sheltering there.
Proceeding on a basis other than humanitarian law, the UN Security Council has set up what it has referred to as " safe areas, " security zones " , " protected zones " and " secure humanitarian areas " . These areas have been established under Chapter VII of the UN Charter, which authorizes the Security Council to take coercive measures in cases constituting a threat to international peace and security.
The characteristics of each of the above-mentioned areas have been d ictated by the objectives and circumstances specific to the situation. But all these areas have explicitly or implicitly had the same purpose: the protection of civilians against the effects of war. They have been criticized on two counts. Firstly, they have sometimes been imposed on the warring parties and certain belligerents have thus been disinclined to respect them. Secondly, they have not always been demilitarized and have thus not been able to claim true immunity against attack.
Finally, the means in terms of personnel and equipment provided for their defence against attack have sometimes proved completely inadequate, with tragic consequences for those supposed to be protected by them.
3 (a) (iii) The right to humanitarian assistance
During recent international armed conflicts, the warring parties have placed certain obstacles in the way of humanitarian assistance for the civilian population. These obstacles have largely consisted of refusal on security grounds to allow the humanitarian action to take place.
The Fourth Convention provides certain categories of persons with the right to assistance. These provisions also apply to certain objects indispensable to survival. Additional Protocol I extends the right to assistance to the entire population.[14 ]
Where a territory has been occupied, the occupying authority is obliged to accept relief action if the population has insufficient supplies (Art. 59 of the Fourth Convention).[15 ]
The international community has repeatedly condemned and prohibited acts or omissions that threaten the survival of the civilian population (the prohibition of starvation as a method of warfare, the prohibition of blockades and embargoes intended to cause famine among the population, and t he prohibition on hindering the distribution of humanitarian aid).
The 26th International Conference of the Red Cross and Red Crescent,[16 ] held in Geneva in December 1995, reaffirmed three basic principles regarding the right to assistance. Specifically, it reaffirmed:
- the right of the victims of conflict to receive humanitarian assistance;
- the duty of the States to bring assistance to civilians placed under their authority, and their obligation to authorize humanitarian organizations to provide that assistance;
- the right of humanitarian organizations respecting the principles of humanity, neutrality, impartiality and independence to have access to the victims of conflict.
In addition, Article 41 of the UN Charter empowers the Security Council to impose economic sanctions in cases where it has found there to be a threat to the peace, a breach of the peace or an act of aggression. It should be stressed here that these sanctions must be in accordance with humanitarian law.
3 (b) Provisions applicable both to the territories of the parties to conflict and to occupied territory
This section of the Fourth Convention begins with Article 27, which is one of the instrument's key provisions in that it reflects the entire philosophy behind the Convention by stipulating the respect due to the individual and the inalienable character of the individual's fundamental rights.
The provisions that follow Article 27 lay down a number of specific prohibitions: on physical and moral coercion (Art. 31), on corporal punishment and torture (Art. 32), on collective punishment, pillage and reprisals (Art. 33), and on hostage-taking (Art. 34).
Such illegal acts have nevertheless been committed in a number of cases in whi ch villages or entire cities have been captured. Threats, reprisals, rape and corporal punishment have been inflicted on the population and used as a method of warfare in order to terrorize entire populations where the purpose of the conflict has been to drive that population out of its home area. In addition, detainees have frequently been ill-treated.
A number of cases of hostage-taking have been recorded. These hostages have then been either exchanged for prisoners or used as " human shields " to discourage enemy attack.
4. Foreign nationals on the territory of a party to conflict
4 (a) The principles
Articles 35 to 46 apply to those protected by the Fourth Convention in their capacity as foreign nationals on the territory of a party to conflict. These are above all persons whose nationality is that of an enemy State, nationals of neutral countries and stateless persons, who do not benefit from normal diplomatic representation as set out in Article 4.
The above-mentioned provisions first lay down the general principle that protected persons are entitled to leave the territory either at the beginning of or during the conflict, with the proviso that their departure may be denied where it is " contrary to the national interests of the State " . The Convention specifies the conditions in which such repatriations must occur, requiring in particular satisfactory safety, hygiene, sanitation and food.
The principle of non-refoulement is laid down in Article 45, paragraph 4, prohibiting a person's transfer to a country where he or she may have reason to fear persecution on the grounds of political opinions or religious beliefs.
A number of provisions set out rules regarding persons who are not repatriated. Generally speaking, their situation is governed by the provision concerning foreign nationals in peacetime. Several rights are expressly mentioned, in particular those relating to the health, material support and work of these persons. Rules regarding their possible internment are also laid down. This important subject will be taken up in section 6, which is devoted to the internment of protected persons.
Finally, the Detaining Power may not, on the sole grounds that they are nationals of an enemy State, treat as enemy aliens refugees who do not in fact enjoy the protection of any government.
4 (b) The practice
Protected persons have been arbitrarily forced to leave the country in which they were living. The phrase " national interests of the State " is often given a free interpretation despite the fact that States must ensure that protected persons are not forced to leave as a result of discriminatory measures or public pressure.
Large numbers of protected persons have frequently had to leave countries under inhumane conditions, with people being separated from their loved ones, subjected to degrading treatment and robbed of their possessions. People affected in this way have rarely received compensation.
If expulsions of foreign nationals are inevitable, they should be ordered on an individual basis and carried out with due respect for the physical and mental integrity and the dignity of the persons concerned.
In breach of Article 45 of the Fourth Convention, protected persons have been transferred to countries in which they had reason to fear persecution on the grounds of their political opinions or religious beliefs.
5. Occupied territories
5 (a) The principles
Apart from the general rules set out in Articles 27 to 34 of the Fourth Convention and discussed above, the specific rules applicable to occupation are contained in Articles 47 to 78. As pointed out earlier, however, the rules laid down in the Hague Regulations must also be taken into account if the true meaning and spirit of the above-mentioned provisions are to be understood.
Article 42 of those Regulations defines occupation as follows: " Territory is considered occupied when it is actually placed under the authority of the hostile army " .
Thus, occupation is a more or less long-term situation during which a territory and its population find themselves under the control of an occupying force. However, occupation is by nature temporary and involves no transfer of sovereignty.[17 ] The occupation of territory during war does not confer upon the Occupying Power'State authority'over the population of the occupied territory or over the territory itself. It merely brings about a situation in which the Occupying Power takes over the territory's administration from the sovereign State, temporarily and in a limited manner. It also assumes responsibility for ensuring that the necessary conditions exist for individual development.[18 ]
These are principles that have been accepted since the nineteenth century. In legal terms, what finally became of an occupied territory depended on the terms of a peace treaty. In the interval, the occupying State had to ensure public order and restore as normal a life as possible to the occupied population.[19 ] Under the UN Charter, it is today illegal to acquire territory by means of occupation or annexation. The underlying principle is that occupation should repre sent a temporary situation, one that can terminate only with the territory being restored to the State that has sovereignty over it or, in exceptional cases, by other measures being taken that are in accordance with international law.
The Occupying Power cannot change the status of the territory it occupies. Though it becomes the de facto administrator of that territory, the Occupying Power must maintain and preserve the economic and social structures and respect the customs. It can amend the laws and regulations in force in the territory only to the extent needed to enable it to meet its obligations under the Fourth Convention, and to maintain orderly government and ensure its own security. The State whose territory is occupied retains its legislative, administrative and juridical functions, it being understood that the respective roles of the occupied State and the Occupying Power may be dictated by the latter's security needs. Thus, the Occupying Power is responsible for the protected population's welfare and has a duty to provide " good government " .[20 ]
5 (b) The practice
Definite instances of violation and misapplication of the Fourth Convention have been observed in occupied territories. Given their effect on the inhabitants of those territories, certain acts have made a mockery of both the principles and spirit of the Convention that have been outlined above.
Long-term occupation has produced particular problems. Obviously, the longer occupation goes on, the more difficult it is to ensure effective compliance with the Fourth Convention. While development of the territory is an inevitable and even necessary process, the occupying State must promote normal development, one whic h does not cause the fundamental nature of the territory or its population to change. Nor may such development result in the occupied territory becoming dependent on the Occupying Power.
5 (b) (i ) Respecting the civilian population and preserving its autonomy
With the attending chaos a contributing factor, the early days of occupation have seen civilians regularly subjected to violence and ill-treatment such as rape, arbitrary arrest, torture and summary execution. This has occurred in many cases and has often extended beyond the early stages of a conflict.
What is at issue here, however, is the specific manner in which the Occupying Power should conduct itself vis-à-vis the occupied territory and its population in the long term.
In practice, Occupying Powers have not always conducted themselves as de facto administrators but rather as if they had annexed the territory in question. They have used their power to make fundamental changes to the infrastructure and to the organization of life in the territory. In some cases, the laws of the Occupying Power have simply replaced those that had previously been in force in the occupied territory.
Certain measures have had the effect of keeping the population in a state of dependence on the Occupying Power and restricting the population's ability to communicate with the outside world, thus impeding the intellectual, economic and structural development of the occupied territory.[21 ]
The population of some occupied territories have been subjected to very restrictive administrative measures, demonstrating that the Occupying Power has exceeded its mandate to provide orderly administration. Normative provisions have been adopted or legislatio n so interpreted as to deprive individuals of their moveable and immovable property. Administrative measures must not generally be used to pressure, intimidate or harass the population.
Yet measures have been taken by occupying States that have clearly been intended to break the bond of allegiance between the population and the State on which it depended before the occupation occurred. For example, members of the population under occupation have been forced to serve in the occupying army or to fight against the forces of their country of origin. Civil servants have been urged or even forced to collaborate with the enemy. Pressure has been exerted on members of National Red Cross or Red Crescent Societies to become members of the National Society of the Occupying Power.
5 (b) (ii) Deportations, transfers and evacuations
Experience has shown that the forcible transfer and deportation of civilians from their home territory have persisted despite the appalling consequences of such acts during the Second World War and the categorical prohibition of them laid down in the first paragraph of Article 49 of the Fourth Convention. The victims of such acts have generally been among the most vulnerable members of the population, in particular children and the elderly. Collective deportations have been carried out as punitive measures, in order to racially or ethnically " cleanse " an area or to physically eliminate the group concerned.
Such transfers are authorized only if the safety of the population or imperative military considerations so require. In any case, they may take place only within the occupied territory – unless for material reasons it is impossible to avoid displacement outside that territory – and for a limited period (Art. 49, para. 2). Irrespective of the grounds on which such transfers have been carried out, it has bee n observed that they have often turned out to be permanent.
In addition, protected persons accused of offences and/or held in detention have also been transferred by the Occupying Power outside the occupied territory, which is prohibited by Article 76. This situation has caused major problems from a humanitarian viewpoint. In particular, it has impeded access to the detainees by their families and access to their files by defence lawyers.
Other detainees have been released but only on condition that they leave the territory, which violates Article 8 regarding non-waiver of rights ( " Protected persons may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention ... . " ).
5 (b) (iii) Transfer into the territory of the Occupying Power's own population
In order to avert colonization or creeping annexation such as that which occurred during the Second World War, the international community prohibited the transfer (whether voluntary or forcible) by the Occupying Power of its own nationals into the territory it occupies (Art. 49, para. 6).
Unfortunately, such transfers have taken place, mainly in cases of prolonged occupation. They have generally brought about situations in which the populations of the territories concerned have suffered discrimination vis-à-vis the new arrivals as well as serious consequences from a humanitarian viewpoint. The result has been a change in the character of these territories, which runs counter to the very essence of the law governing occupation.
5 (b) (iv) Taking into account military and security imperatives
The Occupying Power is responsible for maintaining order in the territory it occupies, but it is also entitled to ensure its own security. When drafting the Fourth Convention, the States took account of military necessity and security imperatives by striking a balance between the interests of the Occupying Power and the occupied population's need for protection.
Thus, the Occupying Power may take such measures of control and security as may be necessary owing to the conflict (Art. 27) and has the right to constitute military courts to deal with offences jeopardizing its security (Art. 64 ff.).
In cases expressly provided for in the Convention, the Occupying Power can cite security reasons for the action it takes. For example, on the grounds of imperative military considerations, the occupied population may be displaced or, conversely, may even be forced to remain in a particularly dangerous area (Art. 49). If rendered absolutely necessary by military operations, the destruction of property is authorized (Art. 53). A balance must be maintained between the protection needs of the population and the continuity of its rights on the one hand, and the dictates of military operations and security on the other.
In practice, the States make extensive and sometimes erroneous use of exceptions based on the grounds of security, with the resulting risk that reason of State will pervade in an arbitrary manner all spheres of life in the occupied territory. For example, measures taken on the grounds that order must be maintained have paralysed economic life. On the grounds of security, arable land has been confiscated or expropriated for the purpose of agricultural exploitation by nationals of the Occupying Power. The same rationale has seen houses destroyed. Access to agricultural land has been restricted with the result that the nutritional status of villagers has deteriorated. Internment has been used for purpose s other than those authorized by the Convention or in order to circumvent procedures laid down by the law (Article 78).
5 (b) (v) Prohibited destruction
In the early stages of occupation, occupying forces have regularly ignored the prohibition of destruction, with entire villages being pillaged and/or deliberately destroyed.
Once Occupying Powers have set up their administration in a territory, they have sometimes proceeded to destroy houses, either in order to displace their inhabitants and expropriate the land or as a punitive measure. In some cases, the destruction of houses has been intended to have a dissuasive effect on civilians viewed as a potential threat to State security.
Such destruction for the purpose of dissuasion is illegal and must be viewed as the type of collective punishment prohibited by international humanitarian law (Art. 33 of the Fourth Convention).
Engaging in a scorched earth policy, some occupying forces have laid waste to fields, buildings and other installations as they have withdrawn.
5 (b) (vi) Treatment of detainees
A distinction should be drawn between interning civilians as a security measure (Art. 78) and imprisoning protected persons within the framework of judicial procedure. Such persons may be convicted only after receiving a regular trial and being accorded the fundamental guarantees laid down by Article 64 ff.
In practice, these persons have not always benefited from the provisions set out in humanitarian law. Serious violence to their physical and mental integrity has been observed. The problems listed below regarding the treatment and material conditions of detention experienced by civilian internees apply in equal measure to other detainees.
6. Civilian internees
6 (a) The principles
The Fourth Convention allows the internment of protected persons under certain, well-defined conditions. Provision is made for interning both foreign nationals in the territory of a warring party and the inhabitants of an occupied territory.
The internment of protected persons in the territory of a warring party " may be ordered only if the security of the Detaining Power makes it absolutely necessary " (Art. 42). Any person so interned is nevertheless entitled to have that measure reconsidered by an appropriate court or administrative board. If the internment is maintained, the court or board must periodically review the case (at least twice a year).
An Occupying Power may intern protected residents of the occupied territory only " for imperative reasons of security " (Art. 78). Such decisions must be taken according to a regular procedure including the right of appeal. A periodic review – if possible every six months – must be carried out by a competent body.
Internment as such is governed by Articles 79 to 135 of the Fourth Convention. These rules are largely based on the Geneva Convention relative to the treatment of prisoners of war, of 12 August 1949. They concern all the practical aspects of internment, in particular the places of internment, food and clothing, hygiene and medical care, religious, intellectual and physical activities, personal property and financial resources, administration and discipline, relations with the outside, penal and disciplinary sanctions, the transfer of internees, the death of internees, and the release and repatriatio n of internees. It should not be forgotten that women and children are entitled to preferential treatment.
6 (b) The practice
6 (b) (i) Use of internment
As pointed out above, internment is a measure to be resorted to exclusively in exceptional situations. It is in this respect that major problems have been encountered in practice. For example, the authorities have tended to arrest and intern – sometimes on a massive scale – protected persons simply on the basis of their nationality, despite the fact that they should have established the need for internment in each individual case. The very strict criteria for internment imposed by the Fourth Convention are justified in that the individual affected is not a criminal who has been the subject of an investigation and criminal proceedings, and who is serving a sentence. Internment is a non-punitive preventive security measure that may not be taken lightly.
It has also frequently been observed that appeal and periodic review procedures either do not exist or provide no real protection against arbitrary measures, a fact that has in some cases resulted in internment lasting for many years. Misuse of internment has frequently had particularly serious consequences for the individuals affected.
6 (b) (ii) Treatment of internees
Internees have repeatedly been subjected to ill-treatment – sometimes resulting in death – in flagrant violation of the Fourth Convention. Such treatment has been particularly frequent during interrogation, especially for the purpose of extracting confessions or information, or to oblige the protected person to cooperate with the occupation forces.
Internee s have also frequently had difficulty communicating with the outside world. The Fourth Convention provides internees with the opportunity to send an " internment card " , to send and receive letters and to receive visits at regular intervals and as often as possible, above all from their families. It is therefore unlawful to hold civilian internees incommunicado.
There have also been other problems such as lack of food and drinking water, overcrowding, inadequate access to the open air and poor hygiene conditions.
The ICRC has also sometimes been refused permission to meet and talk with civilian internees, though Article 143 of the Fourth Convention expressly entitles the organization to do so.
Security considerations cited as grounds for internment may under no circumstances be used to justify inhumane treatment of internees.
7. Implementing international humanitarian law
Implementation means all measures that must be taken to ensure that the rules are fully complied with and legal obligations translated into action. If it is not actively implemented, international humanitarian law risks losing all credibility.
The Fourth Convention provides several mechanisms for implementation. The States themselves have primary responsibility for this, above all those directly involved in an armed conflict – in particular an occupation – and subsidiarily all States party to the humanitarian treaties.
Some measures must be taken already in peacetime while others are to be taken once fighting has begun. Certain mechanisms involve action by third parties.
7 (a) Implementation measures at the national level
Promoting the t aking of implementation measures at the national level is a matter of major concern. Though most provisions of international humanitarian law must be implemented whether or not national legislation has been adopted to this effect, others definitely require the adoption of legislation or internal regulations. It is of no importance whether a State has adopted a monist or dualist approach to the incorporation of international law into national law. Article 27 of the Vienna Convention (a provision reflecting customary law) points out that " a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty " .
However, in the decades that followed the adoption of the Geneva Conventions, few States met their obligation to integrate into their legislation the provisions of the Conventions. The 26th International Conference of the Red Cross and the Red Crescent approved the recommendations of an inter-governmental group of experts that had met in Geneva in 1995. The group's recommendations called for both the creation of national commissions on international humanitarian law – with the task of advising and assisting the governments – and the strengthening of ICRC services in this regard.
One of the most important legislative measures that must be taken by States concerns the repression of war crimes. The States must ensure that their laws include criminal sanctions for serious violations of humanitarian law.
The States also have the responsibility to prosecute persons alleged to have committed war crimes (Art. 146). In accordance with the principle of universal jurisdiction, international humanitarian law demands that the States search for and punish all persons who have committed grave breaches of the law, regardless of their nationality and of the place where the breach was committed. They must either bring those persons before their own courts or hand them over to a Stat e party to the Convention for prosecution. Grave breaches to which the principle aut dedere aut judicare applies are listed in Article 147. Such prosecution remains rare. However, the setting up of the ad hoc international tribunals has prompted certain States to begin cooperation in this area. The International Criminal Court, the Statute for which has just been adopted, should serve to further strengthen the implementation of humanitarian law.
In peacetime as in wartime, the States Parties are obliged to make the provisions of the Fourth Convention known as widely as possible throughout the population and to incorporate those provisions in their military training programmes (Art. 144). Unfortunately, the basic rules of international humanitarian law are not generally taught to armed forces personnel in a systematic manner and there is little effort to make the population as a whole aware of them.
As soon as a conflict breaks out and in all cases of occupation, each party to that conflict must set up a national information bureau responsible for receiving and forwarding information regarding protected persons who are under its control (Art. 136 and 137). Since the Fourth Convention came into force, such bureaux have remained rare, the warring parties usually being content to accept the services of the ICRC's Central Tracing Agency, an alternative provided for in the Conventions.
As a means of improving protection for civilians and others not taking part in the hostilities, the Fourth Convention also requires protected persons and places to be correctly marked and identified, and provides, where necessary, for hospital and safety zones and neutralized zones.
7(b) Other mechanisms
7 (b) (i) The role of the Protecting Powers and the ICRC
The Fourth Convention provides for scrutiny of its implementation by Protecting Powers whose duty it is to safeguard the interests in humanitarian terms of one of the parties to a conflict (Art. 9). For example, relief distributions may be made under their supervision (Art. 23).
The Protecting Powers can also lend their good offices in the event of a dispute between the warring parties over application or interpretation of the Convention's provisions (Art. 12). In addition, their representatives are entitled to visit all places where protected persons are located (Art. 143)[22 ] and to attend the proceedings of any court trying a protected person (Article 74).
Where there is no agreement designating Protecting Powers, the ICRC substitutes for them on the basis of Article 11. It has turned out in practice that a large number of tasks assigned to the Protecting Powers have in fact been taken on by the ICRC, which has been granted a de jure right of initiative enabling it to undertake activities in behalf of the civilian population (Art. 10). In particular, the ICRC can propose the setting up of a tracing agency to centralize information on protected persons for the purpose of forwarding that information to the authorities of their 0of origin and to their families (Art. 140). The organization enjoys the same rights as the Protecting Powers regarding access to protected persons (Art. 143, para. 5).
In many cases, the ICRC's mandate and specific role have been recognized by the parties to conflict. However, there have been cases in which States have failed to honour their commitment to facilitate the ICRC's work, and others in which that work has been allowed only after labor ious negotiations.
7 (b) (ii) Enquiries
Under Article 149 of the Fourth Convention, the interested parties may agree to open an enquiry regarding any alleged violation of the Convention. In practice, it has proved very difficult to reach agreement between warring States on such an enquiry.
At the diplomatic conference that led to the adoption of the Additional Protocols in 1977, the need was voiced to create a standing body of enquiry. As a result, both the principle and the tasks of the International Fact-Finding Commission were anchored in Article 90 of Additional Protocol I. Though constituted in 1991, the Commission has never been called upon to conduct an enquiry.
7 (b) (iii) Article 1 common to the four Geneva Conventions
" The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances. " By making this declaration, the States party to the Geneva Conventions sought to underscore the particular nature of those treaties, which are not simple contracts based on the principle of reciprocity. The Conventions'universality [23 ] and the intrinsic value of the humanitarian principles they enshrine have given the obligation contained in their words " to respect and to ensure respect " an erga omnes character.
Article 1 has been supplemented by Article 89 of Protocol I, which stipulates that " 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. "
Several UN bodies, includi ng the UN Commission on Human Rights, have concerned themselves with such cases. On several occasions, the UN Security Council itself has solemnly urged the States to honour their obligations under international humanitarian law. In addition, a number of regional organizations have endeavoured to prompt the States to shoulder their responsibilities. However, these entities have not taken systematic action in all situations in which there has been a failure to comply with humanitarian law.
Having witnessed repeated violations, the ICRC has, in its capacity as guardian of international humanitarian law, made a number of appeals to all States, calling on them to take the measures needed to put an end to those violations and to prevent them from recurring.
1. Article 154 of the Fourth Convention stipulates that its provisions do not replace the Regulations but rather are supplementary to the latter's Sections II and III.
2. These treaties only protect combatants:
I. Geneva Convention for the amelioration of the condition of the wounded and sick in armed forces in the field (of 12 August 1949);
II. Geneva Convention for the amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea (of 12 August 1949);
III. Geneva Convention relative to the treatment of prisoners of war (of 12 August 1949).
3. Part II of the Fourth Convention speaks of general protection for civilians against certain consequences of war.
4. Article 75 of Protocol I broadens this protection, providing fundamental guarantees to all persons who find themselves under the control of a party to conflict and are not otherwise entitled to more favourable treatment under the Geneva Conventions.
5. Though they represent two distinct bodies of law, the instruments of one cannot be ignored in favour of the other. The instruments of human rights law provide for the possibility of suspending many of their provisions – those situated outside a " hard core " of essential rules – in the event of a state of emergency, in particular situations constituting a threat to State security. Such derogations may not be made automatically; rather, they must be strictly confined to needs arising from the situation.
6. Article 26 of the Vienna Convention on the law of treaties states that " every treaty in force is binding upon the parties to it and must be performed by them in good faith " .
7. This clause states that in cases not covered by the law of war, the belligerents remain " under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and the dictates of the public conscience " . – Additional Protocol I, Art. 1; see also the Preamble to the Hague Convention No. IV of 1907 and the Fourth Geneva Convention, Art. 158.
8. The Geneva Conventions of 12 August 1949, Commentary (published under the editorship of Jean S. Pictet of the ICRC) to the Geneva Convention relative to the protection of civilian persons in time of war, Geneva, 1958, Article 1, page 16.
9. The ICRC Commentary states that " any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. "
10. See section 7.
11. The one-year provision was eliminated in Article 3, paragraph b of Protocol I additional to the Geneva Conventions. As a result, all provisions of the Fourth Convention apply until the occupation has ended.
12. These provisions were significantly supplemented and developed in Additional Protocol I of 1977, in which the basic principle of distinguishing between civilian persons and objects on the one hand, and military objectives on the other, was reaffirmed in detail.
13. Protection for the wounded and sick and the use of the distinctive emblem and other signs were developed in the Additional Protocols.
14. For example, Article 70 makes relief available to the population of a territory under the control of a warring party, other than occupied territory, and strengthens the obligation to allow such action by specifically prohibiting starvation as a means of warfare (Art. 54).
15. The Occupying Power is nevertheless entitled to search and regulate the passage of relief consignments as well as to demand certain guarantees regarding their destination.
16. The International Conference of the Red Cross and Red Crescent includes representatives of the National Red Cross and Red Crescent Societies, the ICRC, the International Federation of Red Cross and Red Crescent Societies, and the States party to the Geneva Conventions.
17. Eric David, " Principes de droit des conflits armés " , éd. Bruylant, 1994, page 427 et ss.
18. Charles Rousseau, " Le droit des conflits armés " , éd. A. Pedone, 1983, page 134 et ss.
19. As Lassa Oppenheim put it even before the First World War: " He has to administer the country not only in the interest of his own military advantage, but also, so far as possible at any rate, for the public benefit of the inhabitants " – L. Oppenheim, " International law, a treatise " , Vol. II (War and Neutrality), Longmans, Green and co. 1912, p.206.
20. En cyclopaedia of Public International Law, Vol. III, page 765.
21. The Nuremberg Tribunal stated that the economy of a country must simply bear the cost of occupation. Public and private property must not be pillaged. The requisitioning of property without regard for the actual resources of the country results in famine, inflation and large-scale black-marketeering – (Proceedings of the International Military Tribunal).
22. They must be granted access to all places of internment or detention and be allowed to privately interview the protected persons held there. No limits may be set on the frequency or duration of these visits.
23. As of 30 September 1998, there were 188 States party to the Geneva Conventions.
Ref. LG 1998-081-ENG