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Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: The Diplomatic Conference, Geneva, 1974 – 1977*

Published online by Cambridge University Press:  07 July 2009

Frits Kalshoven
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Extract

As set out in section II of this paper, the Diplomatic Conference, by adopting Article 48 of Protocol I, reaffirmed the principle of distinction “between the civilian population and combatants and between civilian objects and military objectives”. The obligation to make this distinction serves, as the Article states, “to ensure respect for and protection of the civilian population and civilian objects”. As a logical consequence of this obligation, the Article lays down that the Parties to the conflict “accordingly shall direct their military operations only against military objectives”.

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Articles
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Netherlands Yearbook of International Law , Volume 9 , December 1978 , pp. 107 - 171
Copyright
Copyright © T.M.C. Asser Press 1978

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References

1. 8 NYIL (1977) at pp. 116–119.

2. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts; for text, see, e.g., 17 International Review of the Red Cross (1977) pp. 3–87. The Conference also adopted the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Victims of Non-international Armed Conflicts, or Protocol II; ibid., pp. 89–101. For a discussion of the main characteristics of the two Protocols, see Part I of this Article, 8 NYIL (1977) pp. 107–116.

3. Pictet, Jean S., Le Droit humanitaire et la Protection des victimes de la guerre, (Leyden 1973) at pp. 84–85Google Scholar; see International Committee of the Red Cross, The Geneva Conventions of 12 August 1949, Commentary published under the general editorship of Jean S. Pictet, vol. I (1952) pp. 134–135.Google Scholar

4. “Problems relating to atomic, bacteriological and chemical warfare are subjects of international agreements or negotiations by governments, and in submitting these draft Additional Protocols the ICRC does not intend to broach these problems”: International Committee of the Red Cross, Draft Additional Protocols to the Geneva Conventions of 12 August 1949, (Geneva June 1973) p. 2: Introduction.Google Scholar

5. This point is made explicit in the report of Committee III on its work during the second session, CDDH/215/Rcv. 1 para. 50.

6. See 8 NYIL (1977) at p. 124.

7. Art. 4A (1), (2), (3) and (6) of the Third Geneva Convention of 1949 and Art. 43 of Protocol I.

8. 8 NYIL (1977) at pp. 119–125.

9. Ibid., at pp. 126–129.

10. CDDH/215/Rev. 1: Report of Committee III on its work during the second session, para. 64. The definition reads as follows: “In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”.

11. In earlier proposals, as, e.g., in the formula accepted by the Institut de droit international in its Edinburgh session, 1969, these two conditions were alternative rather than cumulative; Annuaire (1969-II) p. 375. See too this writer's The Law of Warfare (Leiden 1973) pp. 53–58.Google Scholar

12. CDDH/III/224: Report to Committee III on the work of the Working Group, 24 February 1975, p. 6.

13. This point was emphasized by Mr. Paolini (France) in his explanation of vote regarding Art. 52, para. 2. His delegation, he said, was unable to accept the stipulation in the opening sentence of this paragraph that “[a]ttacks shall be limited strictly to military objectives”, because “there were many situations in armed conflicts in which it was difficult or even impossible to determine precisely the limits of a military objective, particularly in large towns and in forest areas, in either of which enemy armed forces and groups of civilians might be intermingled”; CDDH/SR.41, 26 May 1977, para. 150. This point is of greatest importance with respect to the prohibition on indiscriminate attacks, which will be dealt with infra.

14. CDDH/50: Report of Committee III, first session, para. 40.

15. 3 NYIL (1972) at p. 35.

16. Loc.cit. n. 12.

17. Proposed by the Swedish delegation: CDDH/III/52.

18. CDDH/215/Rev. 1: Report of Committee III, second session, para. 65.

19. The Geneva Conventions of 12 August 1949, Commentary published under the general editorship of Jean S. Pictet, IV Geneva Convention relative to the Protection of Civilian Persons in Time of War (Geneva, International Committee of the Red Cross 1958) pp. 225–226, 228. For a fuller discussion of the concepts of reprisals and “quasi-reprisals” and the history of their prohibition vis-à-vis protected persons, see this author's Belligerent Reprisals (1971) passim.

20. CDDH/215/Rev. 1: Report of Committee III, second session, para. 60.

21. CDDH/SR. 41, 26 May 1977, para. 118.

22. France had long striven to get an article on “exceptional measures in the event of grave breaches” adopted by the Conference. On this, see this author's “Reprisals in the CDDH”, in Akkerman, Robert J. et al. , ed., Declarations on Principles – A Quest For Universal Peace (1977) pp. 195–216Google Scholar. In the end, it withdrew its proposal; CDDH/405/Rev. 1: Report of Committee I, fourth session, para. 28.

23. Besides attacks “which are not directed at a specific military objective”, para. 4 of Art. 51 enumerates as indiscriminate attacks “those which employ a method or means of combat which cannot be directed at a specific military objective” and “those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol”, adding that they “consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction”. It should be noted in passing that the latter two types of “indiscriminate attack” are surrounded by somewhat greater doubt than is the first one.

24. CDDH/III/SR. 21, 17 February 1975, para. 91: Mr. Reed (USA): “As to the principle of proportionality, the aim was to draft a rule which was in his view already established by custom and in practice … The rule already existed, and it must be explicitly codified in the documents designed to ensure the protection of the civilian population and civilian objects”.

25. Ibid. para. 11: Mr. Cretu; and see, for the attitude of this delegation at the time of the experts' conferences, 3 NYIL (1972), p. 18 et seq. at pp. 39–40.

26. CDDH/III/SR. 31, 14 March 1975, para. 31; in a subsequent explanation of vote, Mr. Cristescu (Romania) fulminated once more against the principle of proportionality which “his delegation had always opposed” and as he explained at length, “was contrary not only to humanitarian principles but to the general principles of international law”; ibid. para. 42.

27. CDDH/215/Rev. 1: Report of Committee III, second session, para. 97.

28. CDDH/SR. 41, 26 May 1977, para. 121 (italics supplied).

29. See, e.g., US Naval War College, International Law Studies 1966; Mallison, W.T. Jr., Studies in the Law of Naval Warfare: Submarines in General and Limited Wars (1968) p. 126.Google Scholar

30. For that reason, the Romanian delegates to the preparatory Conference of Government Experts had proposed to delete a similar clause contained in the ICRC draft text; see 3 NYIL (1972) pp. 18–61, at p. 40. As far as the records of the Diplomatic Conference show, the Romanians did not repeat their suggestion there.

31. As the report of Committee III states: “The so-called rule of proportionality in para. 2(a)iii was found ultimately to be acceptable when it was preceded by para. 2(a)i and para. 2(a)ii which prescribe additional precautions and are phrased in terms of losses ‘excessive in relation to the concrete and direct military advantage anticipated’, and was supplemented by para. 5 to make clear that it may not be construed as authorization for attacks against civilians”, CDDH/215/Rev. 1, Report of Committee IV, second session, para. 97.

32. CDDH/SR. 41, para. 111. Mr. Paolini went on to give some examples which, he felt, supported his contention and repeated once again that the provisions at issue “went beyond [their] humanitarian aim and [were] likely seriously to impair the inherent right of legitimate defence”; ibid. paras. 111–116. – The French posture with respect to rules in the Protocol which “went beyond the strict confines of humanitarian law and in fact regulated the law of war” was already mentioned in Part I of this paper, 8 NYIL (1977) pp. 107–135, at pp. 117–118.

33. Supra text at n. 21. Among delegations recording their concern over the possible implications for national defence were Afghanistan, Cameroon and Columbia; CDDH/SR. 41, 26 May 1977.

34. Ibid. Annex.

35. Loc.cit.

36. See for this question and the Romanian attitude with respect to it already 3 NYIL (1972) pp. 18–61, at pp. 54–55.

37. Art. 17; Schindler, & Toman, eds., The Laws of Armed Conflicts (1973) p. 29.Google Scholar

38. Art. 27 of the Hague Regulations Respecting the Laws and Customs of War on Land; ibid. p. 78.

39. CDDH/SR. 42, 27 May 1977, Annex.

40. Ibid.

41. “For the purposes of the present Convention, the term ‘cultural property’ shall cover, irrespective of origin or ownership: (a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above;

(b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-para, (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in sub-para, (a);

(c) centres containing a large amount of cultural property as defined in sub-para, (a) and (b), to be known as ‘centres containing monuments’.“ For the text of the Hague Convention of 1954, see Schindler & Toman, op.cit., p. 525 et seq.

42. Information supplied by the Treaties Department of the Netherlands Ministry for Foreign Affairs on 25 July 1978.

43. Adopted despite the objections of Sri Lanka and Syria, in the 55th plenary meeting, on 7 June 1977, by 53 votes to none, with 33 abstentions; CDDH/SR. 55, paras. 4–22.

44. CDDH/215/Rev. 1, para. 73.

45. This is made clear in para. 3 of Art. 49, according to which the provisions of Part IV, Section I of the Protocol, while applying “to any land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land … do not otherwise affect the rules of international law applicable in armed conflict at sea or in the air”.

46. Para. 2 reads: “It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive”.

47. CDDH/215/Rev. 1, para. 74.

48. Ibid. para. 75.

49. Ibid. para. 76.

50. Loc.cit.

51. CDDH/SR. 42, 27 May 1977, para. 19. – When the draft Article was initially discussed in Committee III, the French delegate, Mr. Bretton, did not refer to the possible national defence aspects of the proposed text; in contrast, Mr. Blix (Sweden), who could never be accused of taking too much account of the needs of national defence, expressed his delegation's understanding of “a scorched-earth policy which was used to stop enemies invading a Party's own territory. That was a deep-rooted practice which should be taken into account”; CDDH/.III/.SR. 17, 11 February 1975, para. 19.

52. ICRC, Report on the Work of the Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, second session, 3 May – 3 June 1972 (Geneva, July 1972), vol. IGoogle Scholar, para. 3.19; vol. II, documents CE/COM III/.C 2 (Poland), CE/COM III/C 6 (Czechoslovakia, German Democratic Republic and Hungary), CE/COM III/C 68–69 (Bulgaria, Czechoslovakia, German Democratic Republic, Hungary and Poland). The last-mentioned proposal was a merger of the two earlier proposals; proposed a prohibition “to use means and methods [of combat] which destroy the natural human environmental conditions”. At the XXIInd International Conference of the Red Cross, held at Teheran in November 1973, the Government delegations of Czechoslovakia, the German Democratic Republic and Hungary reiterated their suggestion, proposing to include “the salubrity and balance of the natural environment” in the draft article on protection of objects indispensable to the survival of the civilian population; ICRC, Report on the Study by the XXIInd International Conference of the Red Cross of the Draft Additional Protocols to the Geneva Conventions of August 12, 1949 (Geneva, January 1974), para. 53 and Annexes, Part I, DH/4/Corr. 6.Google Scholar

53. CDDH/SR. 14, 7 March 1974, para. 42. For other speakers referring to the question, see: CDDH/SR. 11, 5 March 1974, para. 22 (Yugoslavia), CDDH/SR. 12, 6 March 1974, para. 23 (USSR) and CDDH/SR. 13, 6 March 1974, para. 61 (Czechoslovakia).

54. See infra section IV.

55. There was no very clear idea at the Conference of what was to be understood by “natural environment”, “ecological balance”, “stability of the ecosystem” etc. Rather, the Conference started from the premiss that “the natural environment” was a value worth being protected against intolerable damage, and left it at that.

56. CDDH/215/Rev. 1, para. 27. See, too, the Rapporteur's more detailed Report to Committee III on the work of the Working Group, CDDH/III/275 + Corr. 1.

57. Ibid. para. 82.

58. Even before Article 55 was drafted in Committee III (during the 1975 session of the Conference) the “dangers of the use of environmental modification techniques for military purposes” had been brought to the attention of the international community in a joint Nixon/Brezjnew statement, signed at Moscow on 3 July 1974 and in which it was recognized “that such use could have widespread, long-lasting, and severe effects harmful to human welfare”. In the 1977 Convention on Geophysical Warfare, which eventually emerged from this initiative, the main element is a prohibition “to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party” (Article I, para. 1). Besides the noncumulative character of the list of possible effects in the last-quoted phrase, it is interesting to note that a completely different interpretation is placed on the key term “long-lasting” in this Article than on “long-term” in Article 55 of Protocol I. According to an “understanding” arrived at in the CCD (though not attached as an annex to the Convention) effects will be long-lasting when they last “for a period of months, or approximately a season”. “Widespread”, on the other hand, is understood as “encompassing an area on the scale of several hundred square kilometres” – a scale that need not have been attained to render Art. 55 applicable. Indeed, both the “understanding” and, from the opposite angle, several participants in the Diplomatic Conference made it clear that the interpretation placed upon the above terms in the context of one instrument were intended exclusively for that instrument and, as the “understanding” has it, were “not intended to prejudice the interpretation of the same or similar terms if used in connection with any other international agreement”.

59. See, too, concerning the significance and interpretation of Art. 56, para. 1, CDDH/215/Rev. 1, paras. 85–87.

60. Although Art. 19 of the First Geneva Convention of 1949 lays down in no uncertain terms that military hospitals and ambulances “may in no circumstances be attacked, but shall at all times be respected and protected by the Parties to the conflict”, Art. 20 goes on to provide that the protection of these objects “shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy”; the Article adds that protection “may, however, cease only after a due warning has been given, naming, in all appropriate cases, a reasonable time limit and after such warning has remained unheeded”. Identical provisions for the protection of civilian hospitals are to be found in Arts. 18 and 19 of the Fourth Geneva Convention of 1949.

61. CDDH/215/Rev. 1, para. 91.

62. Ibid., loc.cit.

63. Ibid., para. 88.

64. Ibid., loc.cit.

65. At the time of the adoption by consensus of the then Art. 49 (subsequently renumbered as 56) Mr. Schutte, member of the delegation of the Netherlands, stated in so many words that “[h]is delegation considered the interpretation of para. 2 of Art. 49 given by the Rapporteur … to be the correct one. Its support of the consensus on Art. 49 had been based on that assumption”; CDDH/III/SR. 31, 14 March 1975, para. 48; see too para. 46.

66. Loc.cit., n. 63.

67. While para. 2 already makes the cessation of special protection subject to the condition, inter alia, that an attack on the object “is the only feasible way to terminate” the “regular, significant and direct support of military operations” in which the object is being used, the second sentence of para. 3 adds that in the event of such attack “all practical precautions shall be taken to avoid the release of the dangerous forces”. In his report to Committee III, the Rapporteur hailed this provision as “one of the most important contributions of this article”; CDDH/III/264/Rev. 1 p. 6. It would appear, however, that the provision amounts to little more than an application to a specific case of the general obligation to “take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects” (Art. 57, sub-para. 2(a)(ii)). In the Report of the Committee the eulogistic phrase of the Rapporteur is not to be found; the Report does, however, reproduce the further comment of the Rapporteur that “[g]iven the array of arms available to modem armies, this requirement should provide real protection against the catastrophic release of these forces”; CDDH/215/Rev. 1, para. 92. One could hope that only “modern armies” would find themselves confronted with the need to attack “works or installations containing dangerous forces”; indeed, the arms trade of our days seems to do its utmost to convert more and more armies into “modern armies” equipped with an array of the most sophisticated weapons.

68. These defensive installations “shall not themselves be made the object of attack, provided that they are not used in hostilities except for defensive actions necessary to respond to attacks against the protected works or installations and that their armament is limited to weapons capable only of repelling hostile actions against the protected works or installations”. As the Report notes, this language is the outcome of “considerable discussion about the question of the types of armament to be permitted to the defensive installations”. It is submitted that the form of words ultimately accepted is far from providing a clear rule, nor is much clarification added by the concluding remark in the Report that “[t]hus, the use of weapons capable of attacking enemy forces passing at some distance from the protected work or installation is prohibited”; CDDH/215/Rev. 1, para. 93. At all events, the problem is on a completely different scale than that of the protection of military hospitals and ambulances: as Art. 22 of the First Geneva Convention of 1949 provides, the personnel of these establishments or units may be armed and use their arms in their own defence or in that of the wounded and sick in their charge, and in the absence of armed orderlies the establishment or unit may be protected by a picket or by sentries or by an escort.

69. Para. 7 describes the special sign as “consisting of a group of three bright orange circles placed on the same axis”, referring for further specification to Article 16 of Annex I to Protocol I. This Article provides, inter alia, that the sign shall be as large, and may be repeated as often, as appropriate under the circumstances; it should be visible from as many directions and from as far away as possible; it may be lighted or illuminated, and “may also be made of materials rendering it recognizable by technical means of detection”.

70. CDDH/III/264/Rev. 1 p. 6.

71. CDDH/III/SR. 16, 10 February 1975: Mr. El Ghonemy (Egypt).

72. Ibid. loc.cit.

73. Loc.cit., n. 70.

74. CDDH/407/Rev. 1, para. 12.

75. Both Articles were adopted by consensus in Committee III; CDDH/III/SR. 31, 14 March 1975, paras. 36, 37.

76. CDDH/III/SR. 23, 19 February 1975, para. 3.

77. Ibid. para. 59; italics supplied.

78. There were those in Committee III “who wished to permit [non-defended localities] also in the hinterland”, as one among five tendencies that emerged with respect to the scope to be attributed to the concept under discussion; CDDH/215/Rev. 1, para. 108.

79. CDDH/III/SR. 23, 19 February 1975, paras. 7, 37. The ICRC states in its Commentary on the Draft Additional Protocols to the Geneva Conventions of 12 August 1949, published at Geneva in October 1973, that “[b]y virtue of customary international law, non-defended localities are protected once their specific de facto ‘non-defence’ situation is established … Thus any subsequent agreement concluded by the Parties to the conflict is of a purely declaratory nature and can only strengthen the protection already due. This is implied by the wording ‘to facilitate the observance of this rule’ [this being the opening phrase of paragraph 2 of the draft Article, providing the possibility of a declaration on the part of the interested Party to the conflict]. The status of non-defended localities may be confirmed in an unopposed unilateral declaration … or in a special agreement …” (pp. 68–69). Similarly, Mr. Mirimanoff-Chilikine explained in his introductory statement in Committee III that “[u]nder the customary international law codified at The Hague, non-defended localities acquired that status as soon as the de facto situation of ‘non-defence’ came into being. That de facto situation was now described in article 52, paras. 2 and 5”. Mr. Josephi, speaking for the Federal Republic, stated that his delegation “supported the ICRC view” in this respect. Earlier, support for this view had been provided by the West-German author Knut Ipsen in his contribution “Die ‘offne Stadt’ und die Schutzzonen des Genfer Rechts” in Dieter, Fleck ed., Beitrage zur Weiterenwicklung des humanitären Völkerrechts für bewaffnete Konflikte (Hamburg, 1973) pp. 149–196, at p. 160.Google Scholar

80. Paragraph 3 makes an exception for “persons specially protected under the Conventions and this Protocol, and of police forces retained for the sole purpose of maintaining law and order”; examples of persons in the first-mentioned category would be wounded or sick combatants; the police forces have been mentioned to permit the presence of military police, and because in many countries the police form part of the armed forces.

81. These military installations or establishments need not have been dismantled or otherwise rendered inoperative: it will be up to the adversary, once he has occupied the loeality, to dispose of these objects as he sees fit.

82. In that event, the recipient Party “shall immediately so inform the Party making the declaration”. The Article contains no special provisions concerning the modus procedendi in such an impasse; notably, there is nothing about the possibility of third-party verification in loco, which might be the only way to determine objectively whether all four conditions of paragraph 2 are, or are not, fulfilled. On the other hand, the closer a locality claimed to be non-defended is to the zone of actual combat, the more would it be difficult to organize such outside verification.

83. CDDH/215/Rev. 1, para. 111.

84. Ibid., loc.cit.

85. The Parties shall also agree upon “persons to be admitted to the demilitarized zone other than those mentioned in paragraph 4”, the latter being the same categories of specially protected persons and police forces mentioned in Article 59, paragraph 3.

86. CDDH/III/SR. 31, 14 March 1975, para. 37.

37. CDDH/III/264/Rev. 1 p. 8.

88. It was, in point of fact, assigned not to Committee III but to Committee II, as the one in whose competence it most specifically lay.

89. Namely: “(i) warning; (ii) evacuation; (iii) management of shelters; (iv) management of blackout measures; (v) rescue; (vi) medical services, including first aid, and religious assistance; (vii) fire-fighting; (viii) detection and marking of danger areas; (ix) decontamination and similar protective measures; (x) provision of emergency accommodation and supplies; (xi) emergency assistance in the restoration and maintenance of order in distressed areas; (xii) emergency repair of indispensable public utilities; (xiii) emergency disposal of the dead; (xiv) assistance in the preservation of objects essential for survival; (xv) complementary activities necessary to carry out any of the tasks mentioned above, including, but not limited to, planning and organization”. It will be noticed that the last-mentioned “task” renders the enumeration less exhaustive than it purports to be.

90. Further regulations concerning the sign, and concerning the identity card with which, according to paragraph 3 of Article 66, civil defence personnel should be equipped in “occupied territories and in areas where fighting is taking place or is likely to take place”, are contained in Chapter V, on Civil Defence, of the Regulations concerning Identification, which form Annex I to Protocol I.

91. Article 68 of Protocol I mentions specifically Articles 23, 55, and 59–62 of that Convention.

92. 8 NYIL (1977) pp. 107–135, at p. 118.

93. An amusing detail is that here, as in Article 56 of Protocol I, works and installations are protected “even where these objects are military objectives”, though the distinction between civilian objects and military objectives figures nowhere in the text – let alone that a definition of the latter category of objects is provided. This is probably a consequence of the haste with which the final version of Protocol II was put together.

94. “Unity” is the sixth of seven fundamental principles adopted by the XXth International Conference of the Red Cross, held in Vienna, 1965. Its meaning is described as follows: “There can be only one Red Cross Society in any one country. It must be open to all. It must carry on its humanitarian work throughout its territory”.

95. The term “organizations” was deliberately chosen instead of “Societies”, to leave the possibility open that a non-recognized Red Cross “organization”, established in the course of the conflict in one part of the country (probably in the part held by the insurgents) would be permitted to function despite the obvious infringement of the principle of unity.

96. The opening Article of the preceding Part III (“Wounded, sick and shipwrecked”), Article 7 on “Protection and care”, lays down the fundamental principles that “All the wounded, sick and shipwrecked, whether or not they haven taken part in the armed conflict, shall be respected and protected”, that they “shall be treated humanely and shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition”, and that “There shall be no distinction among them founded on any grounds other than medical ones”. Article 10 (“General protection of medical duties”) spells out that no-one “shall be punished for having carried out medical activities compatible with medical ethics, regardless of the person benefiting therefrom”.

97. 8 NYIL (1977) pp. 107–135, at pp. 116–135.

98. CDDH/III/SR. 26, 27 February 1975, para. 26.

99. CDDH/III/SR. 27, 3 March 1975, para. 18: Mr. Rabary (Madagascar).

100. CDDH/III/237; see CDDH/III/SR. 26, 27 February 1975, para. 8: Mr. Mahony (Head of the delegation of Australia).

101. CDDH/III/SR. 38, 10 April 1975, para. 7.

102. Ibid. para. 51. Mr. Cameron added that “[h]is delegation had abstained from voting on article 33 [i.e., 35 in the final version] for that reason”; this is a somewhat surprising remark, in view of the fact that the Article had just been adopted by consensus (ibid. para. 7): it may go to show once again that a “consensus vote”, no matter how indispensable a device to expedite matters in international conferences, is far from being perceived by the participants themselves as a registration of unanimity.

103. The Parties to the Declaration engaged “mutually to renounce, in case of war among themselves, the employment by their military troops of any projectile below a weight of 400 grammes, which is either explosive or charged with fulminating or inflammable substances”; for the text, see: Schindler, & Toman, eds. The Laws of Armed Conflicts (1973) p. 95.Google Scholar

104. Articles 12 and 13(e) of the Declaration of Brussels; op.cit., n. 103 pp. 25–34, at p. 29.

105. While the British delegate, Sir David Hughes-Morgan estimated that “it might perhaps be better … to say ‘injury’ instead of ‘suffering’” (CDDH/III/SR. 26, para. 28), the words “unnecessary suffering” were nonetheless retained besides “superfluous injury” because they had become part and parcel of customary law and were, moreover, deemed to add a useful nuance to the concept of “superfluous injury”: as the Report of Committee III notes, “the French, ‘maux superflus’, … includes both physical and moral injury”; CDDH/215/Rev. 1, para. 21. The element of calculation, on the other hand, was dropped without a word of comment; interestingly, at the Lucerne Conference of Government Experts on the Use of Certain Conventional Weapons (24 September – 18 October 1974), one expert had argued in favour of its retention, because “without it weapon designers might not always refrain from deliberately designing weapons that would cause unnecessary suffering”; ICRC, Report of the Conference (Geneva, 1975), para. 22.

106. CDDH/III/SR. 38, para. 50.

107. Ibid para. 38.

108. Ibid. para. 39. The point is also reflected in the Report of the Committee, CDDH/215/Rev. 1, para. 21.

109. The present writer reported on that Conference, and on the debate concerning unnecessary suffering in particular, in 6 NYIL (1975) pp. 77–102, at pp. 89–90.

110. Report of the Conference (Geneva, 1975), paras. 24–27.

111. 7 NYIL (1976) pp. 197–206.

112. CDDH/IV/210, proposal made in 1976 by Austria, Mexico, Norway, Sweden, Switzerland and Yugoslavia; Denmark, Colombia and Spain subsequently became co-sponsors (CDDH/IV/210/Add. 1 & 2). See, for discussion of the proposal during the closing session of the Conference, the Report of the Working Group of the Ad Hoc Committee, CDDH/IV/224/Rev. 1, paras. 7–10, and the Report of the Ad Hoc Committee, CDDH/408/Rev. 1, para. 7. For earlier deliberations, see Report of the Lugano session of the Conference of Government experts (Geneva, 1976), Part I, paras. 49–50; Part II, Ninth Meeting; Part III, paras. 77–82; Part IV, doc. COLU/212 (Mexico and Switzerland); and CDDH/237/Rev. 1: Report of the Ad Hoc Committee, 3rd session, paras. 23–24.

113. CDDH/IV/SR. 25, 13 May 1976, para. 3; Mr. de Graffenried repeated and elaborated on this statement in the meeting of 27 May 1976, CDDH/IV/SR. 31, paras. 29–32.

114. CDDH/IV/SR. 31, para. 32; italics supplied.

115. See, in particular, CDDH/IV/226: Comparative Table of Proposals and List of Information Documents, produced by the secretariat of the Conference and published on 6 June 1977.

116. Report of the Lucerne Conference, para. 30.

117. Res. 32/152, 19 December 1977, adopted by 155 votes to none, with 21 abstentions. The Resolution takes note, inter alia, of the Report of the Secretary General on the work done by the Diplomatic Conference during its fourth session with regard to the subject-matter at hand, A/32/124, 8 September 1974.

118. Operational para. 1.

119. Op. et loc.cit. n. 103, supra.

120. CDDH/215/Rev. 1, para. 31; italics supplied.

121. Ibid. para. 30.

122. Report of the Lucerne Conference, paras. 277–281.

123. The proposal was for an amendment of then draft Article 33 (later Article 35); it envisaged periodic meetings of the Contracting Parties under the auspices of the ICRC, with a view to prohibiting, as the occasion arose, particularly reprehensible means or methods of warfare; CDDH/III/11, see also CDDH/III/SR. 26, 27 February 1975, para. 4.

124. CDDH/III/SR. 27, 3 March 1975, paras. 53, 54. The Article on amendment (86 in the ICRC draft, 97 in the final version) is in Part VI, “Final provisions”.

125. Report of the Lugano Conference, pp. 125, 144–146.

125. Ibid. p. 183: COLU/210.

126. CDDH/IV/SR. 33, 1 June 1976, paras. 37–39; see, too, Report of the Ad Hoc Committee, 3rd session, CDDH/237/Rev. 1, para. 58.

127. CDDH/IV/SR. 33, para. 19; Report, para. 59.

128. CDDH/I/340; the co-sponsors were Bolivia, Ecuador, Guatemala, Honduras, Iran, Nicaragua, Philippines and Spain; in the days that followed, Egypt, Peru and Venezuela (Add. 1), Sudan and Yugoslavia (Add. 2) and Iraq and Pakistan (Add. 3) joined the ranks of the cosponsors.

129. Statements to that effect were made by delegates of France, Italy, the United Kingdom, Canada and Hungary. Other delegates strongly defended the competence of Committee I in the matter; strikingly, the Romanian delegate was among them, thus demonstrating the independent posture of his country in matters of international politics: the Soviet bloc had from the outset consistently argued that no new machinery was needed or, indeed, acceptable, as the Conference of the Committee on Disarmament or CCD already existed and was perfectly, and alone, competent to deal with matters of armament and disarmament. The entire debate is recorded in CDDH/I/SR. 68, 26 April 1977.

130. CDDH/I/SR. 69, paras. 1–7.

131. Ibid. para. 8; this statement, though not surprising in the light of the suggestion made earlier by Brigadier Anemaet speaking for the Netherlands delegation, deviated markedly from the posture assumed by many of the Western colleagues, as had already become apparent in the procedural debate of the previous day.

132. CDDH/I/350/Rev. 1/Add. 1/Rev. 1; the Report of the Working Group is annexed to that of Committee I on its work during the fourth session of the Conference, CDDH/405/Rev. 1. For the Canadian statement, see CDDH/I/SR. 77, 18 May 1977, Annex. For completeness' sake, it should be recorded that the Ad Hoc Committee on 5 May 1977 had briefly become the scene of a half-hearted attempt to open a discussion on what action should be taken in that forum on the proposed draft Article 86bis; this attempt was soon defeated; CDDH/IV/SR. 38.

133. CDDH/Inf. 240, 16 May 1977; CDDH/I/SR. 77, 18 May 1977, paras. 4 (Mr. Freeland, United Kingdom), 5–6 (Mr. Partsch, Federal Republic of Germany).

134. CDDH/I/SR. 77, para. 13; 30 votes were cast in favour of the deletion of the Article and 40 against, with 13 abstentions. As the vote was taken by roll-call, it shows that the Netherlands delegation had meanwhile switched its position and joined those who opposed the Article. Interestingly, the delegation of Norway, another NATO country, voted against its deletion.

135. Ibid, paras. 14–30.

136. Ibid. para. 45.

137. CDDH/SR. 47, 31 May 1977.

138. CDDH/SR. 57, 9 June 1977; the quoted phrase is in para. 50.

139. Ibid. para. 69.

140. See, for the discussions in the Experts' Conference preceding the Diplomatic Conference, 3 NYIL (1972) pp. 18–61, at pp. 30–31. See, too, this writer's The Law of Warfare (Leiden, 1973) pp. 101–105.Google Scholar

141. CDDH/236/Rev. 1, para. 15.

142. It is listed under (c); the other examples are: “(a) the feigning of an incapacitation by wounds or sickness; … (d) the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict”. Examples of ruses of war are: “the use of camouflage, decoys, mock operations and misinformation”.

143. CDDH/236/Rev. 1, para. 19.

144. CDDH/SR. 39, 25 May 1977, para. 64.

145. CDDH/215/Rev. 1, paras. 36, 37; CDDH/SR. 39, paras. 64, 66.

146. CDDH/236/Rev. 1, para. 26; CDDH/SR. 39, paras. 66, 69.

147. CDDH/236/Rev. 1, para. 23.

148. Ibid. para. 24.

149. CDDH/III/SR. 47, 31 May 1976, paras. 11–28.

150. Report of the Committee, CDDH/236/Rev. 1, para. 29.

151. CDDH/III/SR. 47–48, 31 May/1 June 1976, passim.

152. Ibid. The Hague Rules are found in Schindler & Toman, op.cit., n. 103 supra p. 139 et seq. Rule 20 reads as follows: “When an aircraft has been disabled, the occupants when endeavouring to escape by means of a parachute must not be attacked in the course of their descent”.

153. Report of the Working Group, CDDH/III/391 p. 3.

154. CDDH/III/SR. 59, 10 May 1977, para. 8; the vote on the question of reconsideration was 51 to 12, with 14 abstentions; the Article in its revised version was adopted by 52 to 4 votes, with 22 abstentions.

155. CDDH/III/391 p. 3.

156. CDDH/407/Rev. 1, para. 15.

157. CDDH/413.

158. The vote was 29 in favour, 27 against and 34 abstentions; CDDH/SR. 39, para. 85.

159. CDDH/414.

160. CDDH/SR. 39, paras. 88–90.

161. Ibid, paras. 72, 96–97, 103, 106, 108.

162. Ibid, paras. 110, 113.