|Measures Available to States for Fulfilling their Obligation to Ensure Respect for International Humanitarian Law (International Committee of the Red Cross , 1994, 20 p.)|
In addition to decisions to take measures to exert economic pressure, such as those identified above, certain regional agencies, particularly those active in the human rights field, may help in another way to promote respect for both human rights and international humanitarian law.11 This has been the case of the European and Inter-American Human Rights Commissions.
11 In this connection, see Dietrich Schindler, The International Committee of the Red Cross and Human Rights, International Review of the Red Cross, January-February 1979, No. 208, pp. 3-14.
In 1967, a complaint was lodged with the European Commission by the governments of Denmark, Norway, Sweden and the Netherlands against the government of Greece, accusing the latter of violations of the European Convention on Human Rights. As the case was not submitted to the Court, it was the Committee of Ministers which took a decision.
The two aforementioned Commissions have also undertaken fact-finding missions in the field and conducted private interviews with prisoners: the European Commission in Turkey (1986), and the Inter-American Commission during the civil war in the Dominican Republic (1965).
As mentioned above,12 Article 1, by imposing an obligation on States, inevitably brings in politics. And one of the most important means at States disposal, at the international level, is precisely the United Nations. Moreover, any effective attempt by a State to ensure respect for international humanitarian law, especially in the event of massive violations, would be difficult, if not impossible, without the political support of the community of States, and the United Nations is one of the most widely used vehicles for such support in the contemporary world. This is implicitly recognized in Article 89 of Additional Protocol I, which states: In situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in cooperation with the United Nations and in conformity with the United Nations Charter.
12 See General remarks following the introduction.
The different types of measures which States may take in cooperation with the United Nations are listed below.13
13 For a recent study on this and related subjects, see also Hans-Peter Gasser, Ensuring respect for the Geneva Conventions and Protocols: The role of Third States and the United Nations in Hazel Fox and Michael M. Meyer (eds.) Armed Conflict and the New Law, vol. II Effecting Compliance, The British Institute of International and Comparative Law, London, 1993, pp. 15-49.
Measures decided by the Security Council
a) Unarmed countermeasures.
Article 41 of the United Nations Charter lists a series of measures that the Security Council may decide to take if it determines the existence of one of the three situations referred to in Article 39, that is, any threat to the peace, breach of the peace, or act of aggression. An analysis of actual practice, however, reveals a certain reticence and an empirical approach on the part of the Security Council, which has not always found it necessary either to refer expressly to the articles on which it bases itself or to declare formally in the preamble or operative part of a resolution whether the situation in question corresponds to one of the three designated in Article 39.14 Consequently, when the Security Council places itself in the context of Chapter VII of the Charter, it is implicitly acknowledging that it is in the presence of one of the three situations designated in Article 39. Moreover, the Security Council enjoys great latitude in its competence to classify situations, and ... it is very difficult to find a common guideline in its various resolutions that allows a coherent classification of the various situations enumerated in Article 39.15 For example, in resolution 688 of 5 April 1991, the Security Council deemed that the repression of the Iraqi civilian population in Kurdish-populated areas threatened international peace and security in the region (paragraph 1).
14 La Charte des Nations Unies: Commentaire article par article, Jean-Pierre Cot and Alain Pellet (eds.), Paris/Brussels, Economica/Bruylant, 1985, p. 651 ff.
15 Ibid., p. 654.
The unarmed measures cited in Article 41 are complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
Thus, from 1965 onwards, the Security Council adopted several decisions requesting member States to suspend all their trade relations with Southern Rhodesia.
b) Use of armed force.
It is generally accepted that all military countermeasures by a State are unlawful, and that the sole body competent to impose a sanction involving armed force today is the United Nations and in principle, within that organization, the Security Council.16 States may thus act on the Security Councils authorization to use force in order to ensure respect by a given State for its international obligations.
16 Supra note 5.
A typical example would be the action taken during the Gulf crisis as from 17 January 1991, in pursuance of Security Council resolution 678 of 29 November 1990.
However, as observed earlier, the Security Council enjoys great latitude in deciding which situations constitute threats to international peace and security. For instance, resolution 794 of 3 December 1992 stated that the human tragedy caused by the conflict in Somalia, and further exacerbated by the obstacles being created to the distribution of humanitarian assistance, constituted a threat to international peace and security (preambular paragraph 3). Consequently, in order to stem violations of international humanitarian law, in particular the deliberate impeding of humanitarian assistance (paragraph 5), the Council decided that action be taken under Chapter VII of the Charter, which would include the use of all necessary means to establish a secure environment for humanitarian relief operations in Somalia (paragraphs 7,8 and 10). This decision was to a large extent repeated in resolution 814 of 26 March 1993, using more or less similar terminology (heading of section B and paragraph 14, in particular). In this context, it would be useful to make the following observations. Although the aforementioned action, with allowance for the use of force, was decided upon by the Security Council with a view to ensuring respect for international humanitarian law in an armed conflict situation (provision of humanitarian assistance in this case), it was taken, firstly, on the basis of the United Nations Charter and not of international humanitarian law, and secondly, with the primary goal (and the only one permitted under Chapter VII of the Charter) of restoring (or maintaining, as the need may be) international peace and security. The lawfulness of the use of force in such circumstances is strictly limited to this goal, and cannot be derived from any rule or provision of international humanitarian law, not even Article 89 of Additional Protocol I, which calls upon States party to act, in cooperation with the United Nations and in conformity with its Charter, in situations of serious violations of that law. For international humanitarian law starts off from the premise that any armed conflict results in human suffering, and proceeds to elaborate a body of rules meant precisely to alleviate this very suffering. It would indeed be logically and legally indefensible to deduce that that same law itself allows, even in extreme cases, for the use of armed force.17 Enforcement measures would therefore fall outside the scope of international humanitarian law.
17 For this reason, international humanitarian law applies equally to all parties in an armed conflict situation, and independently of considerations relating to the legality of the use of force (Statements by the ICRC on the applicability of international humanitarian law to United Nations Peace-keeping Forces, 47th and 48th sessions of the General Assembly, 1992 and 1993 respectively). See also Report on the Protection of War Victims prepared by the ICRC for the International Conference for the Protection of War Victims, published in International Review of the Red Cross, No. 296, September-October 1993, at 3.1.3. In fact, if it were conceded that international humanitarian law does permit the use of armed force in order to put an end to violations of this law, then it could also be argued that any use of armed force which abides by international humanitarian law to the letter is thereby legal under that law, independently of the provisions of the Charter. This would be absurd, which is precisely one of the reasons why international humanitarian law cannot (and must not) in any way be connected with the legality of the use of force.
Measures decided by the General Assembly
a) Implicitly authorized countermeasures.
The General Assembly may more or less explicitly acknowledge that a State has not respected its obligations under the Charter, but without making any recommendation to member States to adopt countermeasures against it.
For instance, resolution A/RES/ES.6/2 adopted by the General Assembly at its sixth emergency special session, on 14 January 1980, strongly deplores the armed intervention in Afghanistan (paragraph 2), but makes no mention of the USSR. In such cases, there is nothing to prevent States from taking lawful countermeasures.
b) Explicitly recommended countermeasures.
The General Assembly may recommend that members (and sometimes even other States) adopt sanctions against a State whose conduct is qualified as contrary to the rules of the Charter. A perfect example would be resolution A/RES/ES/9/1 of 5 February 1982, adopted at its ninth emergency special session on the situation in the occupied Arab territories. The resolution lists a whole series of measures to be applied against Israel: suspension of economic, financial and technological assistance and cooperation, severing of diplomatic, trade and cultural relations [paragraph 12 (c)and (d)] in order to isolate it totally in all fields (paragraph 13).
c) Besides resolutions requesting States to apply countermeasures, the Security Council, the General Assembly and the Secretary-General may be mobilized by member States to issue statements on the applicability of international humanitarian law and denounce violations which have been committed.
The Security Council expressed concern with regard to attacks against the civilian populations in the Gulf in resolution 540 of 31 October 1983 on the situation between Iran and Iraq, which specifically condemned all violations of international humanitarian law, in particular of provisions of the Geneva Conventions in all their aspects and called for the immediate cessation of all military operations against civilian targets, including city and residential areas (paragraph 2); resolution 681 of 20 December 1990, in its paragraph 4, underlined the applicability of the Fourth Geneva Convention to the territories occupied by Israel; General Assembly resolution A/45/172 of 18 December 1990, concerning the situation of human rights and fundamental freedoms in El Salvador, referred to international humanitarian law; the Secretary-General made several appeals calling upon Iran and Iraq to release and repatriate all sick and wounded prisoners immediately (paragraph 40 of report S/20862 to the Security Council, 22 September 1989).
d) States may also use the public (denunciation) and confidential (in principle, discreet negotiations) procedures provided for in the Commission on Human Rights in order to bring pressure to bear on States to respect applicable international law. They may encourage references to international humanitarian law in the Commission and in the Sub-Commission.
During their 1990 sessions, for example, both the Commission and the Sub-Commission mentioned international humanitarian law in the cases of Afghanistan, southern Africa, El Salvador and Israel.
e) States may encourage recourse by the United Nations to the services of special rapporteurs mandated to conduct enquiries into specific violations of international humanitarian law, taking the procedure already employed in the field of human rights as a model.
In 1984, a report was prepared by experts designated by the Secretary-General to investigate the Islamic Republic of Irans allegations concerning the use of chemical weapons (S/16433, 26 March 1984); the Commission on Human Rights decided, in paragraph 4 of resolution 1993/2 A (19 February 1993) to appoint a Special Rapporteur to investigate Israels violations of the principles and bases of international law, international humanitarian law and specifically the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, in the Palestinian territory occupied by Israel since 1967.
f) States may also, through the Security Council and/or the General Assembly (within the limits set out in Article 96, paragraph I, of the Charter), request the International Court of Justice to give an advisory opinion on whether an established fact - namely an alleged violation of international humanitarian law by a State or States party involved in a conflict - actually constitutes a breach of an international commitment undertaken by that State or those States.
This is not equivalent to requesting the International Court of Justice to rule on the dispute underlying the armed conflict in question, which it would decline to do,18 but rather on a more abstract question associated with the responsibility of States party to an international treaty.
18 Interpretation of peace treaties, Advisory Opinion, ICJ Report, 1950, p. 72, where the ICJ states that it would not be in a position to express an opinion should the question put to it be directly related to the main point of a dispute actually pending between two States, so that answering the question would be substantially equivalent to deciding the dispute between the parties.