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Impartiality and Neutrality in Humanitarian Law and Practice

Published online by Cambridge University Press:  13 January 2010

Frits Kalshoven
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Extract

On 27 June 1986, the International Court of Justice (ICJ) gave judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua. The case, involving Nicaragua against the United States of America, is remarkable in many respects, and so is the judgment. I should like to single out two special features: it deals with a situation of armed conflict, and it mentions the Red Cross.

Type
On the Fundamental Principles of the Red Cross and Red Crescent
Information
International Review of the Red Cross (1961 - 1997) , Volume 29 , Issue 273 , December 1989 , pp. 516 - 535
Copyright
Copyright © International Committee of the Red Cross 1989

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References

1 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports, 1986, p. 14.Google Scholar

2 As the judgment went against the United States, it sparked off a hot debate among American international lawyers; see the immediate reactions of some twenty lawyers, in: 81 Am. J. Int'l Law (1987), pp. 1–183.Google Scholar

3 The case began with an Application by Nicaragua, filed on 9 April 1984; neither this State nor the U.S. had excluded disputes relating to armed conflict from their relevant instruments of acceptance of the Court's jurisdiction. As the U.S. rather than availing itself of its reservation to the effect that any matter declared by the U.S. to be an internal affair is outside the jurisdiction of the Court, chose to stay away from the proceedings once the Court had by its judgment of 26 November 1984 decided that it had jurisdiction, nothing stood in the way of the Court's dealing with the matter.

4 As quoted in ICJ Reports 1986, p. 47, para. 97; p. 115: para. 243.

5 Ibid., p. 114, para. 242.

6 International Red Cross Handbook, 12th ed., Geneva, 1983 (hereinafter: Handbook), p. 17 Google Scholar: Resolution IX of the Twentieth International Conference of the Red Cross, Vienna, 1965.

7 ICJ Reports 1986, p. 115, para. 243.

8 An earlier, somewhat tentative and less authoritative list of principles was adopted by the then Board of Governors (now the General Assembly) of the League of Red Cross Societies, in its 19th session, 1946, and reaffirmed at its 20th session, 1948; Handbook, p. 549.Google Scholar

9 His long series of writings on the subject starts out with the magisterial: Les principes de la Croix-Rouge, published in 1955; from this study stem the endeavours that ten years later resulted in the adoption and proclamation of the Fundamental Principles.

10 “The Fundamental Principles of the Red Cross and Peace”, in International Review of the Red Cross No. 239, 03–04 1984, p. 74 Google Scholar. It may be of interest to refer here to an earlier study by the man who in many respects was Jean Pictet's predecessor, Huber, Max, “Croix-Rouge et neutralité”, in Revue international de la Croix-Rouge No. 209, 05 1936, p. 353 CrossRefGoogle Scholar, republished in Huber, Max, La pensée et l'action de la Croix-Rouge, 1954, pp. 77–86.Google Scholar

11 Handbook, p. 547.Google Scholar

12 Tansley, Donald D. Final Report: An Agenda for Red Cross, 07 1975, p. 23.Google Scholar

13 See Royal Red Cross Decree, dated 22 December 1988; Staatsblad 680, 17 01 1989.Google Scholar

14 Handbook, p. 498.Google Scholar

15 Art. 4, para. 3, of the Statutes of the International Red Cross and Red Crescent Movement, adopted by the Twenty-fifth International Red Cross Conference at Geneva in October 1986.

16 Convention I, 75 UNTS (1950) p. 41, Handbook, p. 23 Google Scholar; Convention II, 75 UNTS (1950) p. 85, Handbook, p. 47 Google Scholar; Convention III, 75 UNTS (1950) p. 135 Handbook, p. 67 Google Scholar; Convention IV, 75 UNTS (1950) p. 287, Handbook, p. 136 Google Scholar; Additional Protocol I Handbook, p. 216 Google Scholar; Additional Protocol II, Handbook, p. 286.Google Scholar

17 For a more precise description of the scope of application of Art. 3 and Protocol II, respectively, see Kalshoven, Frits, Constraints on the Waging of War, ICRC, Geneva, 1987.Google Scholar

18 Supra, note 11.

19 Verspyck, Jonkheer G. M., Het Nederlandsche Roode Kruis (1867–1967), p. 86.Google Scholar

20 Art. 8(c) (iii), Art. 9(2), Art. 12(2)(c). It should be noted that Art. 9 develops the legal situation in several respects which, however, are not relevant in the present context; thus, it adds a reference to the permanent medical units and transports and their personnel of “a neutral or an other State which is not a Party to that conflict” (para. 2a) and of “an impartial international humanitarian organization” (para. 2c); see International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987, pp. 138–143 Google Scholar, paras. 407–440.

21 ICJ Reports, 1986, p. 104, para. 219.

22 Handbook, p. 641 Google Scholar; a more complete text of the Resolution is contained in the 10th ed. of the Handbook (1953), pp. 414–415.Google Scholar

23 In an enumeration of exceptional cases, the Resolution goes into the possibility that the Society has been dissolved or is unable or unwilling “to request foreign aid or accept an offer of relief received through the intermediary of the International Committee of the Red Cross”; when, in such a case, “the unrelieved suffering caused by civil war imperatively demands alleviation”, the Committee “shall have the right and the duty to insist to the authorities of the country in question, or to delegate a National Society to so insist, that the necessary relief be accepted and opportunity afforded for its unhindered distribution”.

24 Among the further principles laid down in the Resolution is the requirement that the request must be addressed to the International Committee of the Red Cross (which thereupon, “having ensured the consent of the Government of the country engaged in civil war”, shall organize the relief). On the role of the ICRC in these matters, see hereafter in Part 3.

25 Des Gouttes, Paul, La Convention de Genève pour l'amélioration du sort des blessés et des malades dans les armées en campagne du 27 juillet 1929, Commentaire, 1930, pp. 186–87.Google Scholar

26 Boissier, Pierre, History of the International Committee of the Red Cross: from Solferino to Tsushima, Henry Dunant Institute, Geneva, 1985 Google Scholar, translation from original French, first published in 1963, p. 93.

27 The tendency is already apparent in Resolution XIV of the Tenth International Conference, mentioned in Part 2: while the National Society of the country engaged in civil war may appeal to the Red Cross Societies of other countries, it must do this through the intermediary of the ICRC, which then shall organize the relief; if the government refuses its consent, it is the ICRC that “shall make a public statement of the facts”; indeed, “Should all forms of Government and National Red Cross be dissolved in a country engaged in civil war, the International Committee of the Red Cross shall have full power to endeavour to organise relief in such country, in so far as circumstances permit”. See also Resolution XIV of the Sixteenth International Conference of the Red Cross, London, 1938, Handbook, p. 642 Google Scholar; Resolution XXXI of the Twentieth International Conference of the Red Cross, Vienna, 1965, Handbook, p. 643.Google Scholar

28 Handbook, p. 475.Google Scholar

29 Art. 5(3) of the Statutes, adopted in 1986 by the Twenty-Fifth International Conference of the Red Cross, Geneva.

30 Art. 9 of Conventions I–III, Art. 10 of Convention IV.

31 Draft Art. 39, submitted by the Committee in 1974 to the Diplomatic Conference, had repeated the text of common Art. 3, i.e., that “the ICRC may offer its services to the parties to the conflict”; in 1977, in the course of the final session, the Conference in plenary session deleted this proposed text by consensus; 7 Official Records 151–152: CDDH/SR.53 paras. 64–70; and see Kalshoven, Frits, “Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: the Diplomatic Conference, 1974–1977, Part I: Combatants and Civilians”, in 8 Neth. Yb Int'l Law (1977) pp. 107–135, at p. 115.Google Scholar

32 In its Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987)Google Scholar, the Committee simply states that “What is meant in particular is relief actions which may be undertaken by the ICRC or any other impartial humanitarian organization”; p. 1479 Google Scholar, para. 4879 (emphasis added).

33 For a different interpretation, see ProfBindschedler-Robert, Denise, “Actions of Assistance in Non-international Conflicts — Art. 18 of Protocol II”, in European Seminar on Humanitarian Law, Jagellonean University, Krakow, report, 1979, pp. 71–83 Google Scholar. Her attempt to solve the problem by interpreting the term “High Contracting Party” as the State, thus leaving the question of its representation by the “legal” government or the other party entirely open, was already challenged on that occasion, among others by the present author; report, p. 84 Google Scholar. My participation in a number of the negotiations that resulted in the text of Art. 18 has given me the strong conviction that, to most participants, “High Contracting Party” simply meant the incumbent government.

34 Art. 14, first sentence, lays down the principle that “Starvation of civilians as a method of combat is prohibited”. As regards Art. 18, see: the commentary by Michael, Bothe, in Bothe, Michael, Partsch Karl, Joseph and Solf, A. Waldemar, New Rules for the Victims of Armed Conflicts, 1982, pp. 696–697 Google Scholar, and the ICRC Commentary, p. 1479 Google Scholar: paras. 4884, 4885.

35 See Rufin, Jean-Christophe, Le piège — Quand l'aide humanitaire remplace la guerre, Lattès, Paris, 1986.Google Scholar

36 Information about events in Uganda was provided by Tom W. Buruku, Head of the Africa Department of the League of Red Cross and Red Crescent Societies and former Secretary General of the Uganda Red Cross Society; as for Lebanon, the reader may be referred to the periodic reports in the media. Obviously, this may work both ways; thus, in the Lebanon, the ICRC helped the Lebanese Red Cross survive.

37 As regards the role of the French Red Cross in relation to Biafra see Jacobs, Dan, The Brutality of Nations. Knopf, New York, 1987.Google Scholar

38 Guide for National Red Cross and Red Crescent Societies to Activities in the event of Conflict, document drawn up by the International Committee of the Red Cross Geneva, 10 1986.Google Scholar

39 Ibid., p. 34.

40 Supra, note 22.

41 Op. cit., note 38, p. 55.

42 See, Frits, Kalshoven, Assisting the Victims of Armed Conflict and Other Disasters, Martinus Nijhoff Publishers, Dordrecht, Boston, London, 1989.Google Scholar