II. The Move Toward New Law

The impetus for new international legislation to supplement the Geneva Conventions of 1949 came from a quite different quarter. An International Conference on Human Rights was held in Tehran in 1968, as part of the International Year for Human Rights. The United Nations Human Rights Commission and the Third Committee had completed their basic work on human rights in time ofpeace in the form of the Universal Declaration of Human Rights and the two International Covenants on Civil and Political Rights and on Economic and Social Rights, and it was natural that those persons in the United Nations systems who were interested in human rights should turn to the protection of such rights in time of armed conflict. The Conference adopted a resolution requesting the General Assembly to invite the Secretary-General to study the “steps which could be taken to secure the better application of existing humanitarian international conventions and rules” and “the need for additional humanitarian international conventions or of possible revision of existing conventions” to ensure the better protection of civilians and other war victims.[1] The General Assembly acted on the request and invited the Secretary-General to undertake the study, in consultation with the International Committee of the Red Cross and other interested international organizations.[2]

The resolution of the General Assembly set the stage for a certain conflict between the General Assembly and the International Committee of the Red Cross. The International Committee of the Red Cross, a private international organization with its headquarters in Geneva and entirely Swiss in its direction, had historically considered itself the guardian of the Geneva Conventions of 1949 and of the “Geneva law” in general. It had for a century been both the architect of the conventions for the protection of war victims and the international body primarily concerned with their execution. If the General Assembly were to draft revisions of the existing conventions or new conventions, this activity could only be undertaken at the expense of the I.C.R.C. The I.C.R.C. was widely regarded as highly knowledgeable about international humanitarian law and as neutral and apolitical. But there were already stirrings of politics in the preparation of new humanitarian law, and the very neutrality and detachment of the I.C.R.C. were to be challenged.

The Secretary-General of the United Nations submitted three important substantive reports in 1969,[3] 1970,[4] and 1971,[5] identifying those areas of the law of armed conflict that required further attention. In 1970, the General Assembly adopted a further resolution[6] requesting the Secretary-General to give particular attention to the need for protection of the rights of civilians and combatants in conflicts which arise from the struggles of peoples under colonial and foreign rule for liberation and self-determination and to the better application of existing humanitarian international conventions and rules to such conflicts. This topic was to be a further political battleground in the drafting of new humanitarian law.

The International Committee of the Red Cross responded with alacrity to the challenge posed by the rival humanitarian action of the General Assembly. The XXIst International Conference of the Red Cross requested the I.C.R.C. to draft new rules, to consult governmental experts on these proposals, to submit them to governments for comments, and, if desirable, to recommend the convening of a diplomatic conference to adopt new legal instruments incorporating these rules.[7] The I.C.R.C. did its work and convened a conference of government experts in 1971. This procedure had been employed by the I.C.R.C. with great effectiveness in the past. Experts sent by governments could express themselves with a certain freedom because their statements would not bind governments, but their governmental association meant that they spoke with some authority and would probably reflect the views of their governments, without committing their masters.

But the Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts was of a quite different character from previous such gatherings, where experts generally could sit around one table. Forty-one states were invited to send experts and dispatched delegations, some of which were of quite substantial size. Before the Conference were eight volumes of documentation[8] on measures intended to reinforce the implementation of the existing law, the protection of the civilian population against dangers of hostilities, rules relative to the behavior of combatants, the protection of victims of non-international armed conflicts, rules applicable in guerrilla warfare, the protection of the wounded and the sick—the subjects which seemed to be of the most urgent concern.

The United States showed a particular interest in the better implementation of the existing conventions. The institution of the Protecting Power,[9] a third state charged with looking after the interests of prisoners of war, wounded and sick, and civilians of one belligerent in the hands of the other, had not been employed since the Geneva Conference of 1949, because states found it impossible to find or to agree upon a neutral third power which would perform these functions.[10] It was somewhat paradoxical to be drafting new law when the old law was not fully implemented and the principal instrument for neutral supervision was moribund. The United States experts also attached importance to better protection of the wounded and sick, particularly by way of prompt evacuation from the battlefield, and the preparation of new law on internal armed conflicts.

Following the first Conference of Government Experts, the I.C.R.C., through its own legal staff, prepared two draft protocols to supplement the Geneva Conventions of 1949.[11] The very decision to move ahead with two protocols was of some significance. A number of separate protocols to the Conventions could have been drafted, each dealing with a special subject of interest to a group of states, such as the protection of guerrilla fighters. The decision to draft a protocol on international armed conflicts and a protocol on internal armed conflicts called for comprehensive texts on both scores and provided a justification for venturing upon certain areas of the law in which there was only moderate interest and on which the need for new law was not strongly felt.

A word must be said about the decision to proceed with a separate protocol on internal armed conflicts. In the Geneva Conventions of 1949, the subject was regulated by article 3, common to all four of the Conventions, which required that “ [i]n the case of an armed conflict not of an international character occurring in the territory of one of the High Contracting Parties,” each party to the conflict would be required to conform to a short bill of rights for war victims. The very inclusion in the Conventions of an article dealing with internal armed conflicts was looked upon as a radical change in the law of war, which had theretofore concerned itself only with international armed conflicts. But this one article had proven to be quite inadequate to deal with the widespread deprivations of human rights in civil wars. There have been non-international armed conflicts in abundance in recent years, and a great many international armed conflicts, like that in Vietnam, have an element of internal armed conflict as well.

There had been complaints at the first Conference of Government Experts that there had not been sufficiently wide participation, particularly by developing countries.[12] The I.C.R.C., anxious not to be reproached on this score a second time, extended a general invitation to all parties to the Geneva Conventions of 1949 to appear for the second Conference of Government Experts, which was held in Geneva in 1972. In the event, 77 states sent delegations,[13] and the Conference was conducted in many respects like an international diplomatic conference.

The texts submitted by the I.C.R.C. comprised 136 articles. Those states that were eager to move the work forward were anxious to have at least indicative votes to determine what degree of support various proposals had, but the majority of the delegations were unwilling to commit themselves in this way. In retrospect, it seems particularly unfortunate that a greater effort was not made to move forward various aspects of the law which were far from being controversial. The provisions on medical transports, for example, were in generally good shape, and, were it not for the fact that this was a Conference of Government Experts, could have been adopted in 1971 or 1972. Unwillingness to make decisions about such rules at that time meant a slower process at the Diplomatic Conference of 1974.

What the Conference amounted to, therefore, was a discussion of the I.C.R.C. texts and of the various proposals submitted by states. The I.C.R.C. still proceeded on the basis that it was doing the drafting and that the Government experts were there to advise it on the issues of principle and of drafting presented by the texts of the two protocols.

After the second Conference of Government Experts, the I.C.R.C. once more took up its drafting pen, this time in preparation for the submission of texts to a diplomatic conference. The Swiss Government, the depositary of the Geneva Conventions of 1949, thought it opportune to convene a Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, the first session of which met in Geneva from February 20 to March 29, 1974. 125 states attended the Conference.[14] The largest delegation was that of the United States and consisted of 26 persons, drawn largely from the Departments of State and Defense.

  • [1] Resolution XXIII, Final Act of the International Conference on Human Rights, U.N. Doc.A/CONF. 32/41, at 18 (1968).
  • [2] G.A. Res. 2444 (XXIII), Dec. 16, 1968, 23 U.N. GAOR Supp. No. 18, at 50, U.N. Doc.A/7218 (1969).
  • [3] Respect for Human Rights in Armed Conflicts: [First] Report of the Secretary-General, U.N. Doc.A/7720 (1969).
  • [4] Respect for Human Rights in Armed Conflicts: [Second] Report of the Secretary-General, U.N. Doc.A/8052 (1970).
  • [5] Respect for Human Rights in Armed Conflicts: [Third] Report of the Secretary-General, U.N. Doc. A/8370 (1971).
  • [6] G.A. Res. 2597 (XXIV), Dec. 16, 1969, 24 GAORSupp. No. 30, at 62, U.N. Doc. A/7630(1970).
  • [7] Resolution XIII. Reaffirmation and Development of the Laws and Customs applicable in ArmedConflicts, XXIst International Conference of the Red Cross, Istanbul, September 1969,Resolutions 10 (1969). The Conference also adopted three further resolutions urging that particularattention be given in the drafting of new rules to weapons of mass destruction (Res. XIV, id. at 12), tothe protection of victims of non-international armed conflicts (Res. XVII, id. at 14), and to the statusof combatants in non-international armed conflicts (Res. XVIII, id. at 14).
  • [8] Documentation submitted by the I.C.R.C. at the Conference of Government Experts on theReaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts,Geneva, 24 May—12 June 1971 (1971).
  • [9] See, e.g., arts. 8—11 of the Geneva Prisoners of War Convention, supra note 3. The background ofthese provisions is explained in J. de Preux, La Convention de Geneve relative au traitementdes prisonniers de guerre (3 I.C.R.C. Les Conventions de GenEve du aoUt 1949; Commen-taire) 107—136 (Pictet ed. 1958).
  • [10] See Levie, Prisoners of War and the Protecting Power, 55 Am. J. int’l L. 374 (1961); Respect forHuman Rights in Armed Conflicts: [First] Report of the Secretary-General, at para. 213, U.N. Doc.A/7720 (1969); Vol. II of the documentation cited supra note 23, at 11—17. For the United States proposal concerning the appointment of Protecting Powers from listssubmitted by the parties to the conflict and, in default of agreement, the acceptance of the I.C.R.C. as a substitute for the Protecting Power, see Doc. CE/Com.IV/2, in I.C.R.C., Conference ofGovernment Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Report on the Work of the Conference 115(1971).
  • [11] 1—2 I.C.R.C., Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (1972).
  • [12] Respect for Human Rights, supra note 25, at 18.
  • [13] 1 I.C.R.C., Conference of Government Experts, supra note 26, at 9—20.
  • [14] List of Delegates, Doc. CDDH/Inf/5/Rev.1 (1974). Documents of the Conference bear theidentifying symbol CDDH and are dated 1974.
 
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