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The 1974 Diplomatic Conference on Humanitarian Law: Some Observations

Published online by Cambridge University Press:  28 March 2017

David P. Forsythe
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Extract

The 1974 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts was the first attempt by a full-fledged diplomatic conference in 25 years to create new law for the protection of victims of wars. It was also the first time in some 40 years that a diplomatic conference has taken up the question of restricting the use of conventional weapons. And it was the first time since before World War I that an international conference had looked extensively at the question of methods of attack and had weighed their impact on the civilian population.

Type
Research Article
Information
American Journal of International Law , Volume 69 , Issue 1 , January 1975 , pp. 77 - 91
Copyright
Copyright © American Society of International Law 1975

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References

1 Some of the recent literature on updating this law, not subsequently referred to, is: R. S. Hartigan, Noncombatant Immunity, 29 Rev. of Politics 204–20 (1987); R. R. Baxter, The Privy Council on the Qualifications of Belligerents, 63 AJIL 290–96 (1969); M. Walzer, Prisoners of War, 63 Amer. Pol. Science Rev. 777–86 (1969); P. C. Warnke et al., Implementing the Rules of War, ASIL Proc. 68 AJIL (No. 4), 183–205 (1973); Schwarzenberger, G. , From the Laws of War to the Laws of Armed Conflict, 17 J. of Pub. L. 61–77 (1968)Google Scholar; Hewitt, W. E. Respect for Human Rights in Armed Conflicts, 4 N.Y.U. J. of Int. L. and Pol. 41–65 (1971)Google Scholar; Adler, A. J. Targets in War, 8 Houston L. Rev. 1–18 ((1970)Google Scholar; Morley, J. D. Approaches to the Law of Armed Conflicts, 9 Canadian Y.B. of Int. L. 269–75 (1971)Google Scholar; Draper, G. I. A. D. Ethical and Juridical Status of Constraints in War, 55 Mil. L. Rev. 169–85 (1972)Google Scholar; Bond, J. E. Protection of Noncombatants in Guerrilla Wars, 12 William and Mary L. Rev. 789–99 (1971)Google Scholar; Burwell, David G. Civilian Protection in Modem Warfare, 14 Virginia J. of Int. L. 123–50 (1973)Google Scholar.

2 International Committee of the Red Cross (ICRC), Draft Additional Protocols to the Geneva Conventions of August 12, 1949 (June 1973).

3 ICRC, Draft Additional Protocols to the Geneva Conventions of August 12, 1949, Commentary (October 1973), hereinafter referred to as Commentary. The protocols are the result of some six years of preparatory work. Both the 1968 Tehran Conference on Human Rights and the 1969 Red Cross Conference at Vienna contributed to the origin of the movement to review humanitarian law in armed conflict. There followed debates at the UN General Assembly and the Conferences of Government Experts convened by the ICRC. The Diplomatic Conference was officially called by the Swiss Government, the depositary of ratifications to the 1949 Geneva Conventions.

4 For a concise summary of trends in the ICRC and UN approaches, see Baxter, R. R. Perspective: The Evolving Laws of Armed Conflicts, 60 Mil, L. Rev. 99–111 (1973)Google Scholar. For a more extensive review of the UN approach, see Bailey, S. D. Prohibitions and Restraints in War, Chap. 4 (1972)Google Scholar. See also UN Doc. A/9215, Vols. I & II, Respect for Human Rights in Armed Conflicts, Nov. 7, 1973.

5 Geneva Convention relative to the Treatment of Prisoners of War, done at Geneva, Aug. 12, 1949, Art. 2, 6 UST 3316, TIAS 3364, 75 UNTS 135.

6 Conference document CDDH/I/S.R. 13, March 25, 1974.

7 Those voting in opposition were: Belgium, Canada, Denmark, Federal Republic of Germany, France, Israel, Italy, Japan, Liechtenstein, Luxembourg, Monaco, New Zealand, Netherlands, Portugal, Republic of South Korea, Spain, South Africa, Switzerland, United Kingdom, United States of America, Uruguay. Those abstaining were: Australia, Austria, Burma, Brazil, Colombia, Chile, Greece, Guatemala, Holy See, Ireland, Philippines, Sweden, Turkey.

8 As set forth in Article 2 common to the four Conventions of 1949.

9 CDDH/I/S.R. 14, at 9. For a statement supporting this traditional interpretation by a well known Western legal scholar, who was also a Dutch delegate to the conference, see Kalshoven, Frits The Law of Warfare 12–17 (1973)Google Scholar.

10 CDDH/I/S.R. 2, at 12–14. CDDH/I/81, March 25, 1974, at 5.

11 CDDH/S.R. 2, at 15.

12 Notably Article 3 common to the four Geneva Conventions of 1949.

13 CDDH/S.R. 14, at 9.

14 Id., 6.

15 CDDH/S.R. 2, at 3–4.

16 The early weeks of the Conference were spent in debate over representation issues. Compromises were reached on (1) the seating of delegations from national liberation movements as nonvoting participants and (2) the distribution of conference posts. The delegation representing the government of Guinea Bissau was also seated. The question of accepting the credentials of the PRG was referred to the Conference iself by the host government, Switzerland. Once that question became a matter of floor debate, the United States in particular believed it had to take a firm stand in opposition. After prolonged debate, the PRG credentials were rejected by a one vote majority. Ironically, the delegation of North Vietnam had walked out prior to the vote.

17 A fascinating and classic example of the theory of the just war as applied to the jus bello is contained in a North Vietnamese statement circulated after their walkout. It rejects the traditional concepts of jus in bello and humanitarian law, asserting that only the just party—i.e., the resisters of imperialistic aggression—have any legal rights. It is perhaps the clearest explanation to date of their behavior toward opponents in the Vietnam war. See CDDH/41, March 12, 1974.

18 CDDH/I/S.R. 5, at 4.

19 George, Aldrich Human Rights in Armed Conflict: Development of the Law, 68 Dept. State Bull. 876, 877 (1973)Google Scholar.

20 CDDU/S.R. 2, at 14

21 CDDH/S.R. 5, at 2.

22 Commentary, supra note 3, at 47 ff. See also the Commentary with regard to Article 1 of Protocol I, which contains material relevant to this subject and represents some ICRC response to Third World views.

23 A number of amendments were proposed to Article 1 of Protocol I in Committee I. In addition to the one that eventually passed and the one co-sponsored by Australia, Norway, and Egypt, inter alia, the Marxists submitted one which failed to mention the right of self-determination in general but rather spoke of colonial, racist, and occupying regimes. For a review of events in Committee I, see CDDH/81, Draft Report of Committee I. While the Marxist group voted with the Third World and helped polarize the Conference, the Marxist position was basically one of quiet support for more vocal Third World delegations such as India, Nigeria, and Tanzania.

24 Lauterpacht, H. The Problem of the Revision of the Law of War, 29 Brit. Y.B. of Int. L., 363 and passim (1952)Google Scholar. Cf. Jean, Pictet The Principles of International Humanitarian Law (ICRC, 1966)Google Scholar.

25 See introduction to Falk, R. and Hanbieder, W. International Law and Organization (1968)Google Scholar.

26 The works of Myres McDougal, stressing this point, are well known and represent the most extensive and systematic development of this point of view in international law.

27 This of course has been the conventional point of view in the West.

28 Frledheim, Robert L. The “Satisfied” and “Dissatisfied” States Negotiate International Law, 18 World Politics passim (1965)Google Scholar.

29 The subject of the Protecting Power system is too large and important to be treated here. International opinion is clearly fragmented on the subject, as reflected in the large number of arguments and proposals offered at the 1974 Conference. The Marxist group, in particular, appears strongly opposed to any provision for a third party to supervise the implementation of the laws of war without the expressed consent of the party involved. See further, Draper, G.I.A.D. Implementation of International Law in Armed Conflict, 48 International Relations 46–60 (1972)Google Scholar; and especially at 47: “To talk of the regular application of international humanitarian law without the effective functioning of some Protecting Power system . . . is idle chatter.”

30 “Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.” Declaration of the Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter, General Assembly Resolution 2625 (XXV), Oct. 24, 1970, 25 UN GAOR, Supp. 28, at 122, UN Doc. A/8028 (1970); 65 AJIL 243 (1971).

31 See further Freymond, Jacques Confronting Total War, 62 AJIL 672–75 (1973)Google Scholar; and Pictet, Jean Le Droit Humanitaire Et La Protection des Victtmes de la Guerre 61 (1973)Google Scholar.

32 The Norwegians have proposed a one protocol approach containing several articles applying only to internal conflicts. See further Farer, Tom Humanitarian Law and Armed Conflicts: Toward the Definition of “Internal Armed Conflict,” 71 Col. L.R. 37–72 (1971)Google Scholar and The Laws of War 25 Years After Nuremberg, 538 International. Conciliation 31 (1971).