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Reaffirmation and development of international humanitarian law applicable in armed conflicts: The diplomatic conference, Geneva, 1974–1977: Part I: Combatants and Civilians *

Published online by Cambridge University Press:  07 July 2009

Frits Kalshoven
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Extract

On 10 June 1977, at Geneva, the representatives of ninety-seven States, of the Holy See and of three national liberation movements put their signatures to the Final Act of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts. This event brought to a formal close a Conference which had commenced its work in 1974, and which had, in the course of four consecutive annual sessions deliberated, negotiated, and more or less satisfactorily resolved a large number of often delicate issues of humanitarian law.

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Articles
Information
Netherlands Yearbook of International Law , Volume 8 , December 1977 , pp. 107 - 135
Copyright
Copyright © T.M.C. Asser Press 1977

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References

1. (Provisional) summary record of the 59th plenary meeting: CDDH/SR. 59, 10 June 1977; subsequently, the representatives of 4 more States affixed their signatures to the Final Act.

2. 2 N.Y.I.L. (1971) pp. 68–90; 3 N.Y.I.L. (1972) pp. 18–61; 5 N.Y.I.L. (1974) pp. 3–26.

3. 5 N.Y.I.L. (1974) pp. 26–34.

4. For a report on the work of the Ad Hoc Committee up to the 3rd session of the Diplomatic Conference, as well as of the Lucerne and Lugano Conferences of government experts held under ICRC auspices in 1974 and 1976, respectively, see the author's articles in 6 N.Y.I.L. (1975) pp. 77–102 and 7 N.Y.I.L. (1976) pp. 197–206.

5. For an explanation of the meaning attached to this term by the author, see his The Law of Warfare (Sijthoff, Leiden 1973) pp. 24–27.Google Scholar

6. ICRC Bulletin, No. 18–19, July-August 1977, p. 2.

7. These principles can be summed up as follows: humane treatment of “persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause”; prohibition, with respect to these persons, of violence to life and person, taking of hostages, outrages upon personal dignity, and the passing of sentences or the carrying out of executions “without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”; and the duty to collect and care for the wounded and the sick.

8. The text is to be found in Conference document CDDH/402.

9. The simplified version is contained in CDDH/427.

10. CDDH/SR.49, 2 June 1977, p. 10.

11. CDDH/SR.56, 8 June 1977, passim; the Turkish comment is in the Annex at p. 19.

12. CDDH/SR.49, 2 June 1977, p. 11 et seq.

13. Ibid., Annex, p. 6.

13a. Prof. Jean Pictet, Vice-President of the ICRC, made an unequivocal statement to this effect in the plenary Conference; CDDH/SR. 53, 4 June 1977.

14. Committee I had adopted this provision by consensus as paragraph 5 of Article 10 at its 63rd meeting; CDDH/I/SR.63, 4 June 1976, para. 74. At the plenary meeting, a separate vote was taken on this paragraph; there were 12 votes in favour, 26 against and 49 abstentions, so that the paragraph was deleted: CDDH/SR.50, 3 June 1977, pp. 9–12.

15. CDDH/I/SR.63, 4 June 1976, para. 38; the vote was 34 in favour, 17 against, with 2 abstentions.

16. CDDH/SR.53, 4 June 1977, pp. 13–14.

17. As the outcome of a long and often acrimonious debate, Committee I towards the end of the 1st session of the Conference adopted by 70 votes to 21, with 13 abstentions, a text for Article 1 of Protocol I. Paragraph 2 of this Article provides that “The situations referred to in the preceding paragraph [i.e., the situations referred to in Article 2 common to the Geneva Conventions of 1949] include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations”; see 5 N.Y.I.L. (1974) pp. 30–33, where the decision was criticized by the present author who expressed the hope that “a reconsideration of the text of Article 1 as adopted by Committee I would still be possible” (at p. 33). Nothing of the kind happened, however; in the final session of the Conference, the plenary meeting adopted the text by 87 votes to one (Israel), with 11 abstentions mostly from Western countries (who in the meantime had “learned to live” with the idea); CDDH/SR.36, 24 May 1977, pp. 9–10.

18. CDDH/SR.49, 2 June 1977, p. 18.

19. CDDH/III/SR.10, 21 March 1974, para. 15; CDDH/SR.41, 26 May 1977, at pp. 27–28.

20. Declaration renouncing the use in war of “any projectile of a weight below 400 grammes, which is either explosive or charged with fulminating or inflammable substances”; for text, see: Schindler, & Toman, , The Laws of Armed Conflicts (Sijthoff Leiden, 1973), No. 8 (pp. 95–97)Google Scholar. As the representative of the ICRC stated in Committee III, the quoted phrase “reaffirmed” the preambular paragraph of the St. Petersburg Declaration and the subsequent part of the proposed text “developed the same idea, since the concept of military objective had appeared only in the first quarter of the present century.” See CDDH/III/SR.2, 12 March 1974, para. 7.

21. CDDH/50: Report of Committee III, fust session; paxa. 17.

22. CDDH/III/SR.4, 13 March 1974, para. 2.

23. CDDH/SR.41, 26 May 1977, Annex p. 7.

24. CDDH/SR.39, 25 May 1977, p. 10: explanation of vote relating to Article 35, being the opening Article (“Basic Rules”) of Part III (“Methods and Means of Warfare; Combatant and Prisoner-of-war Status”).

25. CDDH/50, Report of Committee III, first session; paras. 52–54.

26. CDDH/SR.52, 6 June 1977, pp. 7–16. In the course of the discussion in plenary, the representative of the United States, George Aldrich, gave the following curious explanation why his delegation would vote against the Article: it “implied that rebels were allowed to choose their objectives” (ibid. p. 12).

27. For the text of the above Resolutions, see Schindler & Toman, op. cit., Nos. 22 (p. 187) and 24 (p. 191). For a discussion of the significance of these Resolutions for internal armed conflicts, see the author's “Applicability of Customary International Law in Non-international Armed Conflicts”, in Cassese, A. (ed.), Current Problems of International Law (Giuffrè, Milan 1975) pp. 267–285.Google Scholar

28. Schindler & Toman, op. cit., Nos. 6–7, at p. 64; the English translation of the 1899 text differs slightly from the one usually quoted from the identical 1907 text, loc. cit., where both texts are reproduced, side by side.

29. Convention I (the Wounded and Sick Convention) Article 13 (2); Convention II (the Wounded, Sick and Shipwrecked Convention) Article 13 (2); Convention III (the Prisoners of War Convention) Article 4A (2).

30. CDDH/SR.41, 26 May 1977, Annex p. 9: written explanation of vote on the part of the delegation of Mauretania.

31. Ibid., p. 19: explanation of vote by the delegate of Mozambique.

32. Res. 2446 (XXIII), confirming Res. XXIII of the International Conference on Human Rights, Teheran 1968.

33. GA Res. 2625 (XXV), in the section on “The Principle of Equal Rights and Self-determination of Peoples”.

34. The ICRC in its proposal treated the matter as one of prisoner-of-war rather than combatant status.

35. For an account of an incident involving Mr. Van Luu and the present writer, as Rapporteur of an experts' conference on conventional weapons, see 6 N.Y.I.L. (1975) at pp. 87–88.

36. In the final version of the Article, the word “party” is spelled throughout the Article with a capital “P”.

37. CDDH/236/Rev. 1: Report of Committee III, third session, paras. 41 to 45. The third paragraph deals with the delicate problem that arises when “a party to the conflict incorporates a paramilitary or armed law enforcement agency into its armed forces”: it then “shall so notify the other parties to the conflict”. It should be noted that in the final version of Protocol I this Article figures as Article 43.

38. CDDH/III/361/Add. 2, p. 2: report on the discussions concerning Article 42, held in the working group during the third session.

39. CDDH/236/Rev. 1: Report of Committee III, third session, para. 43.

40. CDDH/SR.39, 25 May 1977, p. 23; the delegation of Israel was the only one to refer to the Article at all, in a written explanation of vote handed in afterwards which lays stress on the need for effective compliance with the rules of international law applicable in armed conflict; ibid, Annex, p. 3.

41. The statements made at the time were reproduced as a separate Conference document: CDDH/SR.33–36, Annex.

42. CDDH/III/361/Add. 2: Report of Committee III on the deliberations of the working group on draft Article 42.

43. CDDH/236/Rev. 1: Report of Committee III, 3rd session, paras. 83–94.

44. CDDH/III/SR.55, 22 April 1977, pp. 2–3.

45. CDDH/SR.40, 26 May 1977, pp. 2–4.

46. Article 37 deals with the matter of perfidy.

47. See the report of Committee III, quoted in note 42 supra.

48. CDDH/III/SR.55–56, 22 April 1977; CDDH/SR.40–41, 26 May 1977.

49. See note 46 supra.

50. CDDH/III/SR.55–56, 22 April 1977.

51. CDDH/SR.40–41, 26 May 1977.

52. Article 37; see note 46 supra.

53. CDDH/III/361/Add. 2.

54. CDDH/III/SR.55, 22 April 1977, para. 54.

55. CDDH/SR.40, 26 May 1977,pp. 12–13.

56. CDDH/SR.41,26 May 1977, p. 17; italics supplied.

57. Art. 47 para. 2 reads: A mercenary is any person who: (a) is specially recruited locally or abroad in order to fight in an armed conflict; (b) does, in fact, take a direct part in the hostilities; (c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party; (d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict, (e) is not a member of the armed forces of a Party to the conflict, and (f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.