General problems in implementing the Fourth Geneva Convention: statement on occupied territories
Meeting of experts, Geneva 27-29 October 1998. Statement by Yves Sandoz, Head of the ICRC delegation
Mr Chairman, Ladies and Gentlemen,
We have followed with great interest the discussion that has just taken place on the problems associated with occupied territories. It confirms us in our conviction that in this sphere it is extremely difficult to separate the political factors that influence the Convention's applicability from the problems of humanitarian concern that need to be tackled. In raising general problems, several delegations had specific situations in mind, which is quite natural. After all, far from being an exercise in virtual reality, international humanitarian law is intended to improve, in a very practical way, the situation of victims of war.
But if we were to ask each participant to list all the territories in the world that he regarded as occupied, we would end up with a very high number considered as such by a large or small majority, or at least by a minority. If we then asked the governments of all the States described as occupying powers whether they recognized themselves as such, very few of them would do so.
I am certainly not going to suggest that you embark on such an exercise, Mr Chairman, as it would make this meeting an explosive one and would render your task, which is difficult enough as it is, practically impossible. My aim, in fact, is not to point the finger at those who think differently, but for us all to acknowledge reality.
Beyond that, all we can do is stress the international community's responsibility for clarifying ambiguous situations, on the one hand, and for helping to resolve the conflicts that arise from them, on the other. International humanitarian law is no substitute for meeting that o bligation – this is something we need to reiterate loud and clear – and the longer unresolved situations drag on, the greater their tendency to grow poisonous, thus making it extremely difficult to implement humanitarian law.
So what – practically – can States do?
I think we must acknowledge that there are no simple answers to these questions. The discussion that has just taken place has, however, indicated some avenues that we should explore. At this stage, I would simply like to take up several points from this discussion that seem to me worth clarifying or going into in more depth.
The first has to do with the relevance of the present law and whether or not it is appropriate to adopt new rules. As we have just seen, the most acute problem is applicability, and it is obvious that new provisions are not going to solve that. It has been pointed out that the term occupation refers, within the meaning of the Geneva Conventions, only to situations in which one State occupies the territory of another State. We must not, however, ignore the development brought about by the Additional Protocols of 1977. The Protocols raise to the status of international conflicts those in which " peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination " . Admittedly, that definition merely shifts the problem rather than solving it, as now the debate no longer revolves around whether or not we are talking about States but whether or not it is a matter of a people engaged in a liberation struggle, a people that has fallen victim to alien occupation or a racist régime.
The question may be asked whether the broadening of the scope of humanitarian law under Protocol I has become customary law, and the detailed study currently being conducted by the ICRC on customary international humanitarian law should provide us with so me clarification in this regard. But above all this development demonstrates the limits of what may be expected from humanitarian law. Deciding whether or not a State exists, and which peoples should be able to exercise their right to self-determination are political issues, and it is up to the international community to settle them. They cannot simply be shrugged off on international humanitarian law, unless we are to run the risk of politicizing that law. Changing the law itself, therefore, is not going to resolve these issues.
The second question that arose in the discussion concerns the'wearing down'of humanitarian law in cases where occupation drags on and on. It is true, as I have said, that international humanitarian law is no substitute for conflict settlement and that the weariness, despair and tension engendered between the occupiers and the occupied when conflicts persist unresolved do little to encourage compliance with its provisions. But the conclusion we draw is that those provisions are all the more sorely needed precisely because of such problems, and that we must do all the more to ensure that they are strictly adhered to until such time as the conflict is finally over. Apart from its direct importance in humanitarian terms, we must not forget that respect for these rules is also vital if we are to create a climate favourable to conflict settlement itself.
Another factor that should also make States think twice before embarking on a review procedure is the unwieldiness of such an endeavour. Though it has its imperfections, the Fourth Geneva Convention contains substantial rules and is universally recognized. Throwing all those rules open to renewed debate would be a very risky enterprise. Not only is it far from certain whether a consensus could be reached that would improve the Convention's provisions but we would be entering a lengthy period during which the existing standards would be weakened by the fact that they had once again been opened to challenge. For we must not forget the sheer length of such a process, involving as it does the deliberations of experts and the various sessions of a diplomatic conference, followed by the long period needed for all States to ratify the resulting treaty.
For all these reasons, therefore, while we cannot ignore the genuine problems raised during this meeting, it seems to us that a general review of the Conventions would be a very poor remedy just now, indeed one that would do more harm than good.
My third remark concerns the stance of an organization like the ICRC, which is confronted day-in, day-out with the situation on the ground in cases whose definition is in dispute. What we wish to emphasize above all else is the stark reality from a humanitarian viewpoint, whatever legal label may be given to these situations. The settling of one group of people in a particular territory against the will of another, forced displacement, administrative detention, the splitting up of families – these and hundreds of other more or less serious problems always, inevitably, have serious human consequences. It is vital that we acknowledge this and say it openly.
The principles underpinning international humanitarian law must be respected at all times, in all places and under all circumstances. Neither disputes over the applicability of humanitarian law nor security problems – however acute – can justify torture or ill-treatment in prisons, collective punishment or the taking of hostages. Here I would like to unambiguously clarify our position in the face of a threat which might provide just such an excuse for contravening these cardinal precepts, and that is terrorism. Both the ICRC and international humanitarian law itself are fundamentally opposed to terrorism, because its very essence runs counter to all the values upheld by our organization and on which humanitarian law itself is based. Terrorizing people or t hreatening to do so is clearly banned by that law, as are indiscriminate attacks – so typical of terrorism – on groups or individuals not involved in a conflict. Even staff from humanitarian organizations have been targets and continue to be vulnerable to terrorist acts, which render all humanitarian endeavour exceedingly difficult. It is clear too that acts of terrorism do not in themselves prove that an armed conflict exists, and that they are banned both in armed conflict and in situations not covered by international humanitarian law, as they run counter to the hard, inviolable core of human rights. The ICRC in no way underestimates either the difficulty of combating terrorism or the emotion, the thirst for revenge, that grips those who have been physically or mentally wounded by acts of terrorism.
But is it not precisely the role of governments to contain such reactions?
The fundamental principles of international humanitarian law mentioned above were adopted in full awareness of reality, terrorism being no recent invention. It therefore seems to us vital to promote the principles of this law, which are universally recognized and accepted. To allow them to be weakened would be a serious step backwards for the international community and, we firmly believe, could in the long run only reinforce a pattern of hate and terror in which humanitarian considerations would no longer have a place. It is for this reason – to uphold these essential values – that next year, to mark the 50th anniversary of the Geneva Conventions, the ICRC will give priority to defending the principles on which the Conventions are founded and to reaffirming their universal acceptance.
Ref. LG 1998-094-ENG