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Measures available to States for fulfilling their obligation to ensure respect for international humanitarian law

  • Umesh Palwankar

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The present study deals with one specific aspect of the whole issue of finding ways and means of improving respect for international humanitarian law, namely, implementation of the obligation, as contained in Article 1 common to the Geneva Conventions of 1949 and to their Additional Protocol I of 1977, to ensure respect for this law. It is based upon the premise that the interpretation of common Article 1, whereby the obligation to ensure respect for international humanitarian law implies that every High Contracting Party ought to take action with regard to any other High Contracting Party which does not respect this law, is uncontested. The study therefore does not discuss this issue, but rather identifies and briefly comments upon the various types of measures available to States in order to fulfil their obligation to ensure respect. The examples given for the various measures are merely illustrative and ought by no means to be considered as a judgement by the author regarding their justification in the light of the circumstances under which they were adopted.

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1 For such an analysis, see inter alia Luigi Condorelli and Laurence Boisson de Chazournes, “Quelques remarques à propos de l'obligation des Etats de ‘respecter et faire respecter’ le droit international humanitaire ‘en toutes circonstances’” in Swinarski, Christophe (ed.), Studies and essays on international humanitarian law and Red Cross principles in honour of Jean Pictet, Martinus Nijhoff, Geneva-The Hague, 1984, pp. 1736; Levrat, Nicolas, “Les conséquences de l'engagement pris par les Hautes Parties Contractantes de ‘faire respecter’ les Conventions humanitaires” in Kalshoven, Frits & Sandoz, Yves (eds.), Implementation of International Humanitarian Law, Martinus Nijhoff, Dordrecht, 1989, pp. 263296.

2 “…since such an obligation does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression”. Military and paramilitary activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports, 1986, paragraph 220. In the Barcelona Traction case, the International Court of Justice (ICJ) observed that States' obligations to the international community as a whole may be conferred by international instruments of a universal or quasi-universal character and that all States may be considered as having a legal interest in their observance. Barcelona Traction Light and Power Company, Limited, Judgment, ICJ Reports, 1970, paragraphs 33 and 34.

3 See also Resolution XXIII of the International Conference on Human Rights, Tehran, 1968, which emphasizes that the obligation to ensure respect for the Conventions is incumbent even upon States that are not directly involved in an armed conflict. It should equally be noted that there have been neither reservations nor interpretative declarations with regard to Article 1. Nor has any State contested the validity of the appeals issued by the ICRC on the basis of that Article to all States party to the Conventions, in connection with the conflict between Iran and Iraq, in 1983 and 1984. Furthermore, both the General Assembly and the Security Council of the United Nations have referred to the obligation under Article 1, as for example in Security Council resolution 681 of 20 December 1990 concerning the Arab territories occupied by Israel, which, in paragraph 5, calls upon the High Contracting Parties to the Fourth Geneva Convention “… to ensure respect by Israel, the occupying Power, for its obligations under the Convention in accordance with Article 1 thereof and in General Assembly resolution 45/69 of 6 December 1990 concerning the uprising (intifada) of the Palestinian people, which similarly, in paragrah 3, calls upon all States party to the Fourth Convention to ensure respect by Israel for this Convention in conformity with their obligation under its Article 1.

4 As L. Condorelli and L. Boisson de Chazoumes observe, this aspect (vis-à-vis other States) of the obligation to ensure respect relates to what is required of States in the face of violations of humanitarian law attributable to another State. Supra note 1, p. 26.

5 Sandoz, Yves, “It would indeed be unthinkable to see international humanitarian law, whose philosophy it is not to link its application to jus ad bellum, itself become a pretext for armed intervention”, Annals of International Medical Law, No. 33, 1986, p. 47. See also the second and fourth preambular paragraphs in the Preamble to Protocol I additional to the Geneva Conventions. With regard to respect for human rights, “the use of force could not be the appropriate method to monitor or ensure such respect”. Judgment, Nicaragua v. United States of America, ICJ Reports, 1986, paragraph 268. For an overview, with extensive references, of the prohibition of the use of force in international law, see International Law Commission: Third report on State responsibility. Chapter X. A. “The Prohibition of the use of Force” (Doc. A/CN.4/440/Add.1, 14 June 1991).

It should be pointed out here that the inadmissibility of the use of force by States is confined to unilateral actions (Article 2, paragraph 4, of the Charter of the United Nations) and hence is without prejudice to cases where the United Nations intervenes, pursuant to Articles 42 and 43, paragraph 1, of the Charter. Nor does it apply to the right of individual or collective self-defence (Article 51 of the Charter).

6 “The wrongfulness of an act of a State not in conformity with an obligation of that State towards another State is precluded if the act constitutes a measure legitimate under international law against that other State, in consequence of an internationally wrongful act of that other State” (ILC Draft Article 30 on State responsibility), Yearbook of the International Law Commission, 1979, vol. II, p. 115. For termination or suspension of the operation of a treaty as a consequence of its breach, see Article 60, paragraphs 1–4 of the Vienna Convention on the Law of Treaties. Also, Arbitral award in the case concerning the Air Service Agreement of 27 March 1946 between the United States of America and France, Decision of 9 December 1978, paragraph 81: “If a situation arises which, in one State's view, results in the violation of an international obligation by another State, the first State is entitled, within the limits set by the general rules of international law pertaining to the use of armed force, to affirm its rights through counter measures”. Report of Arbitral Awards, Vol. XVIII, p. 417. For an exhaustive study see Kalshoven, Frits, Belligerent Reprisals, Sijthoff, Leyden and Henry Dunant Institute, Geneva, 1971, 389 pp.

7 This refers chiefly to reprisals. For jurisprudence dealing with the lawfulness of reprisals, refer to the “Naulilaa” and “Lysne” cases, Arbitral awards of 31 My 1928 and 30 June 1930 respectively, Report of Arbitral Awards, Vol. II, p. 1025 and p. 1056. Nevertheless, the considerations which follow also apply, by analogy, to measures of retortion which, although intrinsically lawful, should not however stray beyond the bounds of lawfulness. They must for instance respect the principle of proportionality in relation to the objective pursued. They may not be used for purposes other than to put a stop to the unlawful act which prompted them. However, neither practice nor case law provide any clear indications of the bounds of lawfulness of retortion. For details on lawfulness and related considerations with regard to retortion and countermeasures, see International Law Commission: Third report on State responsibility, Chapter I.B. “Retortion” (Doc. A/CN.4/440, 10 June 1991), and Fourth report on State responsibility, Chapter V. “Prohibited countermeasures” (Doc. A/CN.4/444/Add.1, 25 May 1992).

8 In conformity, inter alia, with Article 60, paragraph 5, of the Vienna Convention on the Law of Treaties. Furthermore, paragraph 4 of the same Article makes reservation for the specific provisions of each treaty applicable in the event of a breach. Under international humanitarian law, prohibitions of certain measures against protected persons are to be found in Articles 46, 47, 13(3) and 33(3) of the Four Geneva Conventions respectively and certain articles of Additional Protocol I, such as, for example, Articles 20, 51(6), 54(4). See also International Law Commission, Fourth report on State responsibility, Chapter V.C. “Countermeasures and respect for human rights” (A/CN.4/444/Add.1, 25 May 1992) wherein the rapporteur observes that “… humanitarian limitations to the right of unilateral reaction to internationally wrongful acts have acquired in our time… a degree of restrictive impact which is second only to the condemnation of the use of force” (paragraph 78). Among the examples he cites to support his observation, one finds the total blockade of trade relations with Libya declared in 1986 by the United States, which prohibited the export to Libya of any goods, technology or service from the United States with the exception of publications and donations of articles intended to relieve human suffering, such as food, clothing, medicine and medical supplies strictly intended for medical purposes (paragraph 79).

9 This condition ought equally to be read in the light of General Assembly resolution 2131 (XX) of 21 December 1965 on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty, and resolution 2625 (XXV) of 24 October 1970 on the Declaration on Principles of International Law Concerning Friendly Relations Among States in Accordance with the Charter of the United Nations, both of which clearly condemn the use of economic and political force by States to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights or to secure from it advantages of any kind.

10 This expression seems the most appropriate to cover the whole range of such measures, rather than employing more restrictive terms such as “embargo”, which strictly speaking only concerns exports, or “boycott” which, similarly, only relates to imports.

11 In this connection, see Schindler, Dietrich, “The International Committee of the Red Cross and Human Rights”, International Review of the Red Cross, 0102 1979, No. 208, pp. 314.

12 See General remarks following the introduction.

13 For a recent study on this and related subjects, see also Gasser, Hans-Peter, “Ensuring respect for the Geneva Conventions and Protocols: The role of Third States and the United Nations” in Fox, Hazel and Meyer, Michael M. (eds.) Armed Conflict and the New Law, vol. II “Effecting Compliance”, The British Institute of International and Comparative Law, London, 1993, pp. 1549.

14 La Charte des Nations Unies: Commentaire article par article, Cot, Jean-Pierre and Pellet, Alain (eds.), Paris/Brussels, Economica/Bruylant, 1985, p. 651 ff.

15 Ibid., p. 654.

16 Supra note 5.

17 For this reason, international humanitarian law applies equally to all parties in an armed conflict situation, and independently of considerations relating to the legality of the use of force (Statements by the ICRC on the applicability of international humanitarian law to United Nations Peace-keeping Forces, 47th and 48th sessions of the General Assembly, 1992 and 1993 respectively). See also “Report on the Protection of War Victims” prepared by the ICRC for the International Conference for the Protection of War Victims, published in International Review of the Red Cross, No. 296, 0910 1993, at 3.1.3. In fact, if it were conceded that international humanitarian law does permit the use of armed force in order to put an end to violations of this law, then it could also be argued that any use of armed force which abides by international humanitarian law to the letter is thereby “legal” under that law, independently of the provisions of the Charter. This would be absurd, which is precisely one of the reasons why international humanitarian law cannot (and must not) in any way be connected with the legality of the use of force.

18 Interpretation of peace treaties, Advisory Opinion, ICJ Report, 1950, p. 72, where the ICJ states that it would not be in a position to express an opinion should the question put to it be directly related to the main point of a dispute actually pending between two States, so that answering the question would be substantially equivalent to deciding the dispute between the parties.

19 For details, see Junod, Sylvie-Stoyanka, Protection of the Victims of Armed Conflict, Falkland-Malvinas Islands (1982): International Humanitarian Law and Humanitarian Action, ICRC, Geneva, 1984, 45 pp.

20 See Part II, paragraph 11 of the Final Declaration in IRRC, No. 296, 0910 1993, p. 380.

Measures available to States for fulfilling their obligation to ensure respect for international humanitarian law

  • Umesh Palwankar

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