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Who Guards the Guardians: Third Parties and the Law of Armed Conflict

Published online by Cambridge University Press:  27 February 2017

David P. Forsythe
David P. Forsythe*
Affiliation:
University of Nebraska; Princeton Center of International Studies
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Extract

The Geneva Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law in Armed Conflicts continues its attempts to supplement the 1949 Geneva Conventions, and in so doing to make the bulk of jus in bello consonant with factual reality. The first session of the Conference in 1974 provisionally adopted one highly important article out of 137 presented to the Conference by the International Committee of the Red Cross (ICRC). The second session in 1975 provisionally adopted 77 articles pertaining to such important subjects as the definition of a noninternational armed conflict, the protection of civilians and civilian goods, medical transport, environmental protection, and protection of journalists.

Type
Research Article
Information
American Journal of International Law , Volume 70 , Issue 1 , January 1976 , pp. 41 - 61
Copyright
Copyright © by The American Society of International Law 1976

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References

1 The ICRC drew up, in consultation with individuals and governments, two draft protocols to the 1949 Conventions, the first pertaining to international armed conflict, the second to noninternational armed conflict. The one highly important article provisionally adopted in committee, but not formally adopted in conference plenary, pertains to the material field of application of Protocol I, that is, the definition of an international armed conflict. For a review of the first session, see D. Forsythe, The 1974 Diplomatic Conference on Humanitarian Law: Some Observations, 69 AJIL 77 (1975); cf. R. Baxter, Humanitarian Law or Humanitarian Politics: The 1974 Diplomatic Conference on Humanitarian Law, 16 Harvard Int. L. J. 1 (1975); and Suckow, The Development of International Humanitarian Law: A Case Study, 12 R. Int. Commn. Jurists (1974).

2 1949 Geneva Conventions, Art. 1. 6 UST 3316; TIAS No. 3364; 75 UNTS 135; 47 AJIL Supp. 119 (1953).

3 J. Pictet, Geneva Conventions of 12 August 1949: 3 Commentary 92–103 (1960).

4 F. Siordet, The Geneva Conventions of 1949: The Question of Scrutiny 5 (1953).

5 Id. at 8. See further Franklin, Protection of Foreign Interests (1946); H. S. Levie, Prisoners of War and the Protecting Power, 55 AJIL 374 (1961); G. Draper, Implementation of International Law in Armed Conflict, 48 Int. Rel 40 (1972).

6 The ICRC was the original agency in the international Red Cross movement. Composed only of Swiss nationals, the ICRC has been the primary Red Cross actor in situations of armed conflicts and for the protection of detainees in general. National Red Cross Societies, once recognized by the ICRC, have tended to act independently. While the ICRC has frequently operated on both sides of an international armed conflict, National Red Cross Societies have basically operated directly with regard to conationals. A brief review of Red Cross activity pertaining to armed conflicts and other forms of conflict is found in D. Forsythe, Present Role of the Red Cross in Protection (1975).

7 Siordet, supra note 4, at 9.

8 Id. at 11.

9 Quoted in id. at 12.

10 Quoted in Pictet, supra note 3, at 94.

11 Siordet, supra note 4, at 15.

12 See ICRC, Report of the International Committee of the Red Cross on its Activities During the Second World War, (1948) three volumes.

13 Artide 8 in the first three Conventions of 1949 becomes Article 9 in the Fourth. Article 10 in the first three becomes Article 11 in the Fourth.

14 Pictet, supra note 3, at 111.

15 The wording of Common Article 9/9/9/10 is slightly different in each Convention. Pictet, supra note 3, at 106, observes the connection between this general article and other articles mentioning specific functions of the ICRC. This same connection can be established for the Civilians Convention as well.

16 The automatic nature of ICRC detention visits has not attracted much attention. In part, this is because the commentary on these provisions is not completely clear. For example, in the official commentary on the Third Convention, at 106, there seems to be an implication that Article 126, paragraph 4, on visits to detainees is to be read in conjunction with Article 9 requiring the consent of the Detaining Power. By contrast, at 606, it is said that visits are performed “to some degree automatically.” While it is not clear in the text, “to some degree automatically” refers to state consent for individual ICRC delegates only, not to consent for the visit. This is the ICRC view, as established through interviews. See further Pictet, supra note 3, at 106, 602–06. The commentary is particularly unclear at 605, para. 1. The commentary on the Fourth Convention is similar.

Another reason that the automatic nature of these visits has received so little attention is that the ICRC does not emphasize clear legal distinctions in much of its work. It is more interested in protecting and assisting victims than in differentiating traditional activities from specific tasks, and both from other possible bases of ICRC action. This approach is, of course, quite acceptable to states which are not eager to admit automatic rights to third parties.

17 The Protecting Power system, formally and narrowly defined, pertains only to international armed conflict as regulated by the four 1949 Conventions. If a noninternational armed conflict exists, then only Common Article 3 of the 1949 Conventions applies. This article states, in part, “[a]n impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.” There is no reference to a Protecting Power or a substitute.

18 Socialist reservations are analyzed at p. 52 infra.

19 It is important to recall that Common Article 10/10/10/11 of the 1949 Conventions states that the parties “shall request or shall accept.…” Thus according to that law, an offer of services by the ICRC legally entails an automatic acceptance by a state, if no other supervision is provided under Common Articles 8/8/8/9 and 10/10/10/11.

20 For example, in the situation of violence in Northern Ireland in the 1970’s, the ICRC was permitted by the British Government to visit certain detainees as long as there was no reference to Common Article 3 or the Geneva Conventions as a whole. This ICRC presence in a violent situation, without reference to the law of armed conflict, is a common phenomenon; See Forsythe, supra note 6, passim.

21 The three cases of Protecting Powers are mentioned in J. Pictet, Le Droit Humanitaire et la Protection des Victimes de la Guerre (1973). A concise review of the reasons for not using the Protecting Power system since 1949 is found in Abi-Saab, Le Renforcement Du Système D’Application Des Régies Du Droit Humanitaire, 12 Rev. de Droit Pénal Militaire et de Droit de la Guerre 223–40, especially at 227–29 (1973). The statements in the text reflect the results of interviews carried out by the author in Geneva during 1972–1975.

22 ICRC, Annual Report, at 69–70 (1972). With regard to the other situations referred to above, ICRC publications are generally silent regarding the legal differences between the roles of Protecting Powers, official substitutes, and the Red Cross. This is not only because the precise legal basis of ICRC action is frequently unclear (the parties may disagree as to whether an armed conflict exists, and if so whether it is international or noninternational), but also, because it does not matter to the ICRC whether it is or is not discharging a function authorized by a treaty, for what it does in the field is the same in either case.

It appears that the ICRC tried to become an official substitute in the Middle East in the 1970’s primarily because of long-standing difficulties in implementing parts of the Fourth Convention of 1949 in Israeli occupied territory, a situation that the ICRC was to “deplore,” ICRC, Annual Report 6 (1973).

23 This is not to say that the participants were familiar with the background. Indeed, the reverse seemed to be true.

24 The UK statement is found in CDDH/I/SR.28, March 18, 1975, at 15; Israel’s in CDDH/I/SR.18, Feb. 10, 1975, at 4; India’s in CDDH/I/SR.19, Feb. 12, 1975, at 7; the ICRC’s in CDDH/I/SR.17, Feb. 7, 1975, at 10.

25 See CDDH/I/SR.27, at 24–25. The Swiss delegation also presented a proposal to this effect but withdrew it, contenting itself with a statement of explanation of vote. On the role of other “humanitarian” organizations and the repatriation of prisoners of war, see Falk, International Law Aspects of Repatriation of Prisoners of War during Hostilities, 67 AJIL 465 (1973); cf. Levie, International Law Aspects of Repatriation of Prisoners of War during Hostilities: A Reply, id. at 693.

26 ICRC, Draft Additional Protocols to the Geneva Conventions of August 12, 1949, at 4 (1973). In the ICRC draft, this was paragraph 3 of Article 5. The “2(e)” refers to the legal definition of an official substitute, that is, “… an organization acting in place of a Protecting Power in accordance with article 5.” CDDH/I/235, at 2.

27 Statement of J. Pictet, in CDDH/I/SR.27, at 21.

28 ICRC, Draft Additional Protocols, supra note 26, at 13. Cf. the ICRC proposal in 1929 calling for the automatic appointment of substitutes by the ICRC.

29 Statements of Antoine Martin, CDDH/I/SR.17, at 6, 11.

30 Statement of Georges Abi-Saab, CDDH/I/SR.17, at 14.

31 See in general T. Franck and E. Weisband, Word Politics, (1972).

32 Statement by T. W. Cutts, CDDH/I/SR.19, at 4–5.

33 See the formal amendments contained in CDDH/56, Sept. 16, 1974, passim: CDDH/I/24 (Pakistan); CDDH/I/67 (U.K. et al.); CDDH/I/77 (Spain); GDDH/I/31 (Greece); and see the statement by the delegate of Bangladesh in CDDH/I/SR.18, at 12–13. It is interesting that some of the states pressing the ICRC to assume the role of automatic substitute were non-Western and had had some differences of opinion with the ICRC in the past.

34 China and Albania did not attend the 1975 session; nor did South Africa. Documentation of the Socialist position is so extensive as to be superfluous.

35 See Claude Pillotto, Reservations to the 1949 Geneva Conventions, 7–10 (1958); and Pictet, supra note 3, at 114. The ICRC prefers to refer to these submissions as interpretations rather than reservations.

36 CDDH/I/SR.18, at 2–3.

37 See the query by the Soviet delegate in CDDH/I/SR.17, at 11, leading to an ICRC reply which seemed to say there was no legal difference between the two ICRC proposals. See also the amendment put forward by the Soviet Union, Byelorussia, and the Ukraine, CDDH/I/70, in CDDH/56, at 36.

38 Statement by Maj. Gen. George Prugh, in CDDH/I/SR.17, at 4–5, referring to R. R. Baxter, Some Existing Problems of Humanitarian Law, in The Concept of International Armed Conflict: Further Outlook, at 6, Proc. of the Int. Symposium on Humanitarian Law, Brussels, 12–14 Dec. (1974).

39 This paragraph is based on findings from interviews during and after the 1975 session.

40 It is again interesting (supra note 32) that a number of delegations praising the ICRC were non-Western and had had differences of opinion with the ICRC. This had been the case with Indonesia in dealing with the ICRC over the question of political prisoners since 1965. Yet see the Indonesian statement in CDDH/I/SR.28, March 18, 1975, at 8.

41 This paragraph is based on findings from interviews during the 1975 session. In Chile the ICRC has worked extensively to protect and assist “leftist” detainees and their families under the military junta.

42 CDDH/I/235, at 3. This was a merger of earlier proposals by Syria, the Arab group, and Norway.

43 CDDH/I/SR.27, at 2–3. This idea had been articulated for a number of years. See ICRC, supra note 27, at 13.

44 CDDH/I/SR.27, at 5.

45 CDDH/I/GT/48, March 10, 1975, at 2, emphasis in the original.

46 The fifth paragraph was apparently a response to the 1956 situation between Egypt and Israel, where Egypt may have hesitated to accept the Netherlands as Israel’s Protecting Power for fear of thereby recognizing Israel.

The sixth paragraph was a response to the 1962 Indo-Chinese border war in which China argued that it did not have need of a Protecting Power and that India should not have allowed the ICRC to visit detained Chinese nationals, because diplomatic relations were not broken. See Jerome Alan Cohen and Shao-chun Leng, The Sino-Indian Dispute over the Internment and Detention of Chinese in India, in J. Cohen (ed.), China’s Practice of International Law: Some Case Studies, 268–320 (1972). The second part of paragraph six was a response to the confusion in 1971 over the role of Switzerland in the war for Bangladesh. See supra p. 47.

47 Draft Protocol I, Article 85. Article 85 has not yet been adopted.

48 CDDH/I/SR.28, at 9.

49 Id. at 11, author’s translation of the French.

50 Siordet, supra note 4, at 34. Cf. the “scientific” proposals for better law contained in Levie, Some Major Inadequacies in the Existing Law Relating to the Protection of Individuals During Armed Conflict, 19 Hammarskjöld Forum passim (1970).

51 CDDH/I/SR.28, at 3.

52 See Pictet, supra note 3, 603-f. However, the generally accepted view is that state consent for delegates cannot legally be used to block visits; some delegate(s) must be accepted.

53 CDDH/I/28, at 16; author’s translation of the French.

54 CDDH/I/285, April 9, 1975, at 2. It was adopted by consensus. Comments on this article are found primarily in CDDH/I/SR.37, April 4, 1975. Cf. especially Article 125 of Convention III of 1949.

55 See Forsythe, supra note 6, passim

56 Statement of ICRC representative Antoine Martin in CDDH/I/SR.17, at 11.

57 For a largely unpersuasive effort to draw that distinction, see Siordet, supra note 4, at 71 and passim. See also Pictet, supra note 3, at 112–13.

58 With regard to automaticity in the performance of humanitarian tasks, new Article 70-bis strengthens the legal basis for specific tasks and reaffirms old Common Article 9/9/9/10.

59 See especially the proposal of Denmark, New Zealand, and Sweden, for a permanent International Enquiry Commission, to be appointed by the ICRC, contained in CDDH/I/241, March 19, 1975, with supporting arguments in an unofficial “Explanatory Memorandum” dated March 21, 1975, distributed by the Swedish delegation. Cf. a Pakistani proposal in CDDH/I/267, March 25, 1975.

60 There is an effort to write part of the Nuremberg principles on individual responsibility into the Draft Protocols. See especially Draft Protocol I, Section II, “Repression of Breaches of the Conventions and of the Present Protocol,” and such subjects as breaches, grave breaches, superior orders, extradition, etc.

61 See Art. 7 of Protocol I. This was provisionally adopted in Committee I after a separate vote inter alia on the word “general.” One can conceive, however, of a majority of states deciding that, say, Israeli practices in occupied territory constitute not a specific but a general problem in humanitarian law. On the other hand, the slowness of action by such a large group and the realpolitik of the process are not likely to permit this mechanism to be an effective medium of supervision.

62 See Arts. 6 and 71 of Protocol I.

63 See Art. 72 in Protocol I. This was provisionally adopted in Committee I over some opposition by the Socialist group to the paragraph on reporting. On the other hand, Norway wanted the ICRC to use the reporting procedure to set standards as to proper reporting on efforts at dissemination. CDDH/I/SR.38, April 11, 1975, at 8.

64 Paragraphs 1 and 3 of this Article 8 in Draft Protocol II refer to persons interned or detained “for reasons in relation to the armed conflict.” The ICRC is the only third party that has systematically supervised the embryonic law of noninternational armed conflict. “Among private organizations, the International Committee of the Red Cross has labored longest and hardest to extend the law of war to internal conflicts.” James E. Bond, The Rules of Riot 39 and passim (1974).

65 See further Draft Protocol II, Article 39 (a reaffirmation of old Article 3). There have been few formal declarations by governments formally accepting the applicability of Common Article 3. Clear examples of such declarations are those by the French Government in Algeria (1956–1962); and by the Government of Chile (1973–1975). The latter fact is not generally known.

66 In addition to Forsythe, supra note 6, see J. Moreillon, Le Comité International de la Croix-Rouge et la Protection des Détenus Politiques, (1973).

67 CDDH/I/SR.28, at 11.