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Respect for fundamental judicial guarantees in time of armed conflict — The part played by ICRC delegates

Published online by Cambridge University Press:  13 January 2010

Hans-Peter Gasser
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Extract

Article 75 of Protocol I additional to the Geneva Conventions lays down with admirable clarity and concision that even in time of war, or rather especially in time of war, justice must be dispassionate. How does international humanitarian law promote this end? What can the International Committee of the Red Cross, an independent humanitarian institution, do in the harsh reality of an armed conflict towards maintaining respect for the fundamental judicial guarantees protecting persons accused of crimes, some of them particularly abhorrent?

This article will first consider the Geneva Conventions and their Additional Protocols in relation to judicial procedure in time of armed conflicts. Thereafter it will examine the legal bases legitimizing international scrutiny of penal proceedings instituted against persons protected by humanitarian law. The next and principal part of the article will indicate how ICRC delegates appointed to monitor trials as observers do their job. In conclusion the article will try to evaluate this little-known aspect of the ICRC's work of protection.

Type
International Humanitarian Law: Judicial Guarantees in Time of Armed Conflict
Information
International Review of the Red Cross (1961 - 1997) , Volume 32 , Issue 287 , April 1992 , pp. 121 - 142
Copyright
Copyright © International Committee of the Red Cross 1992

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References

1 The author, Pierre Boissier, followed trials in France after the Second World War as an ICRC delegate. See his account in L'épée et la balance, Labor et Fides, Geneva, 1953 Google Scholar, from which this quotation is taken (p. 11).

2 Protocol additional to the Geneva Conventions of 12 August 1949 and relating to the protection of victims of international armed conflicts, of 8 June 1977.

3 See, in the concluding provisions of the four Geneva Conventions of 12 August 1949, Articles 49 ff. of the First Convention, 50 ff. of the Second Convention, 129 ff. of the Third Convention and 146 ff. of the Fourth Convention. See also Protocol I, Articles 85–88.

For general information on the system of penal repression of breaches of

humanitarian law, see the Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Eds. Y. Sandoz, Ch. Swinarski and B. Zimmermann), ICRC, Martinus Nijhoff Publishers, Geneva, 1986 (hereinafter Commentary on the Protocols), Introduction to Part V, Section II of Protocol I, paras. 3398–3422, with bibliography.

4 Third Convention, Articles 82–88 and 99–108, and Protocol I, Articles 85–88.

5 Third Convention, Article 129, para. 2, first sentence.

6 Third Convention, Article 129, para. 2, second sentence, and Protocol I, Article 88.

7 Third Convention, Article 129, para. 3.

8 Third Convention, Article 85.

9 Third Convention, Article 100 ff.

10 Third Convention, Article 84.

11 Third Convention, Article 104.

12 Fourth Convention, Article 38, and Protocol I, Article 75.

13 Fourth Convention, Articles 64–77, and Protocol I, Articles 85, 86 and 88.

14 Fourth Convention, Article 64, para. 2.

15 Fourth Convention, Articles 66, 68 and 75.

16 Fourth Convention, Articles 71–75.

17 Fourth Convention, Articles 117, 118 and 126.

18 Fourth Convention, Section IV, Articles 79–135.

19 Protocol additional to the Geneva Conventions of 12 August 1949 and relating to the protection of victims of non-international armed conflicts, of 8 June 1977.

20 Commentary on the Protocols (see Note 3 above), para. 4597 of Protocol II, Article 6.

21 Article 14. Exceptions may however be made to this provision in time of internal crisis (Covenant, Article 4).

22 European Convention on Human Rights, Articles 5 and 6, American Convention on Human Rights, Article 8, and the African Charter on Human and People's Rights, Article 7.

23 Commentary on the Protocols (see Note 3 above), para. 3007 on Protocol I, Article 75.

24 Article 1 of each of the Conventions of 1949, and Protocol I, Articles 1 and 80.

25 Third Convention, Article 104, and Fourth Convention, Article 71, para. 2.

26 Third Convention, Article 105, and Fourth Convention, Article 72, para. 2.

27 Third Convention, Article 105, para. 5, and Fourth Convention, Article 74, para. 1.

28 Third Convention, Article 107.

29 Fourth Convention, Article 74, para. 2.

30 First, Second and Third Conventions, Article 10, and Fourth Convention, Article 11.

31 See “ICRC protection and assistance activities in situations not covered by international humanitarian law” in International Review of the Red Cross (IRRC), No. 262, January–February 1988, pp. 9–37, and Statutes of the International Red Cross and Red Crescent Movement, Article 5, paras. 2.d) and 3.

32 There is little literature on this activity, but the following excellent introductions to the subject may be consulted: Boissier, Pierre, L'épée et la balance, op. cit. Google Scholar, (see Note 1 above), and Weissbrodt, David, “International Trial Observer”, in Stanford Journal of International Law, 1982, pp. 27–121.Google Scholar

33 See ICRC's internal guidelines on this subject in “Action by the International Committee of the Red Cross in the event of breaches of international humanitarian law”, in IRRC, No. 221, 03–04 1981, pp. 76–83.CrossRefGoogle Scholar

34 Universal Declaration of Human Rights, Article 11, para. 1.