General problems in implementing the Fourth Geneva Convention: final statement
Meeting of experts, Geneva, 27-29 October 1998. Statement by Yves Sandoz, Head of the delegation
Mr Chairman, Ladies and Gentlemen,
In taking the floor at the close of this meeting, I would first of all like to stress that I do so in all modesty and will not attempt to comment on each of the remarks and suggestions put forward by the participants. Once the meeting is over, all the contributions to this most fruitful debate will have to be closely examined with a view to giving practical effect to the conclusions reached. My thanks go to all participants for taking such an active part in the discussions and for the friendly, positive comments they made to the ICRC, either on the subject of our report or in encouraging our work. These tokens of confidence are vital for the ICRC and indeed for the International Red Cross and Red Crescent Movement as a whole, which supports us and cooperates with us in our activities.
I shall therefore confine myself to highlighting a few points that emerged in the course of the debate and that seem to me to be worth underlining here.
In the first place, we need to make better use of existing mechanisms. If a farmer does not plough a field despite all the tools at his disposal, there is no point in inventing new machines without first finding out why proper use is not being made of what is already available. Let us look at a few examples:
Why has the International Fact-Finding Commission never been used despite the sustained efforts made by its successive presidents and members? The first thing to do would be to urge each State that has not yet recognized the Commission's automatic competence by making the declaration provided for in Article 90 of 1977 Additional Protocol I to reconsider the possibility of doing so, with the general interest in mind. Indeed, the Commission will not be effective unless it is able to take action each time there is a suspicion that serious or large-scale violations of international humanitarian law are being committed. Such a suspicion hangs like a heavy threat over this law, since the proliferation of rumours of acts of barbarity - whether founded or unfounded - can rapidly exacerbate the already considerable tension that prevails in every war, as can obviously the threat or commission of such acts. Nor should we forget that the Commission has stated its readiness to act even in situations where its competence has not been formally recognized, that is, in international armed conflicts to which Protocol I does not apply or in non-international armed conflicts, as long as all the parties concerned consent to this. The only real limit to the action of the Commission is the absence of such consent (a commission whose enquiries may be imposed is a different matter altogether). On the other hand, the scope of the Commission remains a broad one, and we should ask ourselves seriously why the services it could provide are not being used. Could we not put this question systematically to the parties to armed conflicts?
Another mechanism which has practically remained a dead letter is that of the Protecting Powers. Here it is easier to understand why certain limits exist; indeed, it is hard to imagine a State agreeing to a Protecting Power placing itself at the service of the dissident party in an internal conflict - which are the most frequent form of confrontation today. Moreover, in cases where the Fourth Geneva Convention applies, the problem is often, as we have seen, that its applicability is disputed. A State which maintains that it is not occupying a territory will not readily agree to a Protecting Power being at the service of the party whose territory it denies occupying. We mus t, however, bear in mind that one of the great advantages of international humanitarian law is that it does provide for on-the-spot monitoring mechanisms, and difficulty in implementing the Protecting Power mechanism should at any rate be conducive to the ICRC receiving an extended mandate to play the role of substitute, as set out in the Geneva Conventions and their Additional Protocol I. This could be done informally, if there are obstacles to the formal recognition of this role. However, we should avoid proposing remedies that could prove counter-productive, and those who have suggested that ICRC action should be imposed by force are going too far, inasmuch as the results achieved by the organization depend precisely on the broad confidence it inspires, and on its independence.
Moreover, very little is being done to meet the obligation to put an end to violations of international humanitarian law or to repress war crimes, and here too each State should examine the situation seriously. The establishment of the International Criminal Court should, as we sincerely hope, give a decisive impetus to the fight against impunity. Indeed, this is essential for the credibility of international humanitarian law, since sanctions form part of any coherent legal system. So let us hope that the Statute of the Court is speedily ratified by a large number of States, so that the Court itself can be set up and command the widespread political and practical support it needs to accomplish its task with complete independence and adequate resources. The inevitable imperfections in the Statute should not serve as a pretext for slowing down the process. In any case, they can undoubtedly be corrected later on the basis of the Court's initial experiences.
This brings us to our second comment. In a sphere as sensitive as international humanitarian law, we must never lose sight of the objective of universality. Humanitarian law reflects values that are accepted throughout the world and by the entire community of States. It is therefore desirable that the instruments created to safeguard these values should be universally recognized. It is important that each State and each party to an armed conflict be aware, without the slightest ambiguity, of the demands of the international community as regards the 1977 Additional Protocols, the Statute of the International Criminal Court and the conventions limiting the use of certain weapons. The efforts made to ensure ratification of these treaties are therefore essential, whether to facilitate and speed up ratification procedures in countries that are favourable to them, or to step up the dialogue when fundamental opposition emerges, so that we can better understand and ultimately overcome the reasons for such opposition. Achieving this objective of universality, towards which we must strive without cease, is the responsibility of each and every one of us. States that decide to ratify a humanitarian law treaty must understand that their role does not end there; they must be aware that, in a realm as sensitive as the law of armed conflicts, universal acceptance of that treaty is the only way to give those who must ensure compliance the confidence necessary to implement it unreservedly at the national level and in peacetime, before conflict breaks out.
This collective responsibility also applies to implementation of the treaty, as both the Geneva Conventions and their Additional Protocols require the Parties to these instruments not only to respect them but also to ensure that they are respected in all circumstances. This means that the Parties must fully understand what this responsibility implies. What can and must States do in practical terms in order to fulfil this obligation, individually or collectively? What exactly does this obligation entail? What relationship should they establish with the UN? These are all questions that deserve to be further clarified, because lack of clarity in this respect may well lead to failure to take action. In any event, it is obvious, for one thing, that the measures adopted will not be effective unless they are backed by a strongly united international community, and, secondly, that reactions to serious violations, once these exceed a certain degree of gravity, must be taken in cooperation with the UN, as stipulated in Article 89 of 1977 Protocol I. After all, coercive measures cannot be taken except in the context of a more wide-ranging examination of the situation, a responsibility which lies in principle with the Security Council.
My third comment follows on logically from the first two. I believe that we can never do enough to stress the importance of being involved, day after day, in the task of implementing international humanitarian law. Statements at international conferences are not enough to help advance this law - the crucial impact can only be achieved by simple, everyday monitoring of its implementation at the national level. It is vital that, in every country, international humanitarian law be regarded not merely as the business of a few diplomats, but as everyone's concern. Earlier I emphasized the importance we attach to the creation of the International Criminal Court, but it must also be said that this Court, far from substituting for domestic courts, should prompt each State to ensure that it has appropriate national legislation for the repression of war crimes. Such efforts at the national level must also be deployed in many other spheres, which is why interministerial committees and other similar mechanisms introduced by certain States are so worthwhile and should become more widespread.
Finally, I would like to stress that the ICRC will do everything within its power to improve the situation and that it is greatly encouraged by the support you have shown it over the past few days. In particular, the ICRC hopes that you will support the efforts of its Advisory Service, which seeks to assist States in a dopting the legislative and other measures needed to implement international humanitarian law in peacetime. This task is undergoing a most encouraging expansion and should develop even further through the promotion of regional cooperation and interaction with similar services. In addition, a special effort still needs to be made, as several speakers have mentioned, in the area of training and the dissemination of humanitarian law, both among the armed forces and at a more general level, especially in schools. Here too, the trend is positive. It needs to receive full support from all States, working with determination to develop it with the help of local resources, particularly the National Red Cross and Red Crescent Societies.
And finally, allow me to stress one more time that everyone must uphold the principles on which the Geneva Conventions are based, in particular humanity, respect for human dignity, and non-discrimination. We need to stand united in defending these principles, regardless of any legalistic issues, and even when terrible acts, especially acts of terrorism, drive us to despair and hatred. To debase this hard core of humanity would inevitably mean getting caught up in the deadly spiral of hatred, wanton violence and racism. In 1999, the ICRC will make the defence of these principles the subject of a year-long campaign based on a vast survey among war victims, to mark the 50th anniversary of the Geneva Conventions. This topic will undoubtedly be one of the key points discussed at the International Conference of the Red Cross and Red Crescent, which will take place in November next year.
We must never forget that these principles will be the foundation of all progress in implementing humanitarian law, including that of the Fourth Geneva Convention, which has been at the heart of this meeting.
Thank you, Mr Chairman.
Ref. LG 1998-095-ENG