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Published online by Cambridge University Press: 13 January 2010
Before stating the terms of the problem we intend to examine, it is necessary first of all to explain what is meant by “the imperative necessity of implementing international humanitarian law”.
1 Sassòli, Marco, “La mise en œuvre du droit international humanitaire et la répression de ses violations”, International Seminar on the Law of Armed Conflicts and Humanitarian Action, Kinshasa, 6–8 January 1988, p. 1.
2 See, inter alia, Sandoz, , Yves, , “Implementing international humanitarian law”, International Dimensions of Humanitarian Law, Paris, UNESCO; Henry Dunant Institute, Geneva, Martinus Nijhoff Publishers, 1988, pp. 261–262 Google Scholar; Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Editors: Sandoz, Yves, Swinarski, Christophe, Zimmermann, Bruno, Martinus Nijhoff Publishers, ICRC, Geneva, 1987, pp. 317–35Google Scholar (hereinafter Commentary on the Additional Protocols).
3 Author's emphasis.
4 The Geneva Conventions and the Additional Protocols contain other provisions of similar purport: e.g. Article 45 of the First Convention, Article 46 of the Second Convention and Article 80 of Additional Protocol I.
5 See Article 58–57–138–153 common to the Conventions, Article 95, para. 1 of Additional Protocol I and Article 23, para. 1 of Additional Protocol II.
6 Op. cit., p. 1080, para. 3730.
7 See Article 62–61–141–157 common to the Conventions; Commentary on the Additional Protocols, p. 1081, paras 3737–3739.Google Scholar
8 See note 5 above.
9 In its ruling on the S.S. Wimbledon case, the Permanent Court of Justice took a similar view: “The Court declines to see, in the conclusion of any treaty by which a State undertakes to perform or refrain from performing a particular act, an abandonment of its sovereignty. No doubt any convention creating an obligation of this kind places a restriction upon the exercise of the sovereign rights of the State, in the sense that it causes them to be exercised in a certain way. Nevertheless, the right of entering into international engagements is an attribute of State sovereignty.” P.C.I.J., Ser. A, No. 1, 17 August 1923.
10 See Quoc, Nguyen, Dinh, , Daillier, , Patrick, and Pellet, , Alain, , Droit international public, 3e éd., Paris, LGDJ, 1987, p. 277.Google Scholar Denunciation is governed by Article 56 of the Vienna Convention on the Law of Treaties.
11 Concerning denunciation, see Maurice, Torrelli, Le droit international humanitaire, Paris, PUF, 1985, p. 90.Google Scholar The author speaks of “the last rampart of sovereignty”.
12 See Article 99 of Additional Protocol I and Article 25 of Additional Protocol II.
13 Paragraph 3 of Article 63–62–142–158 common to the Conventions. See also Article 99 of Additional Protocol I and Article 25 of Additional Protocol II.
14 Paragraph 4 of Article 63–62–142–158 common to the Conventions. See also Article 1, para. 2 of Additional Protocol I and the fourth preambular paragraph of Additional Protocol II.
15 Commentary on the Additional Protocols, p. 39, para. 56.Google Scholar
16 Balanda, , Leliel, Mikuin, “Le droit de Genève et son apport au droit international”Google Scholar, International Seminar on the Law of Armed Conflicts and Humanitarian Action, Kinshasa, 6–8 January 1988, p. 21.
17 Commentary on the Additional Protocols, p. 1108, para. 3835.Google Scholar
18 This is the explanation given by the Commentary on the Additional Protocols of the fact that the question was nevertheless included: “The idea that a State could free itself from the obligations imposed upon it by humanitarian law by means of a denunciation might seem to be incompatible with the very nature of that law.
In view of the uncertainty of customary law and legal writings on the possibilities of denouncing a treaty when it does not have a specific clause for this purpose, it seemed preferable, already in the case of the Conventions to provide for the right to denounce them, at the same time making this right subject to certain restrictions and adding a reminder that some obligations continue to exist in all circumstances.” (p. 1108, paras 3833–3834).
19 As Torrelli, (op. cit., p. 89)Google Scholar reports: “The draft of ICRC Protocol I provided for a procedure giving details of the reservations that could be entered. This proposal was not adopted largely because of the fact, pointed out by Poland, that the reservation procedure had already been fixed by Articles 19 to 23 of the Vienna Convention on the Law of Treaties. However, Egypt, on the contrary, wanted all reservations prohibited to preserve the balance of the compromises reached, since the reservation machinery could enable each State to undo the progress achieved by setting aside the solutions which displeased it”.
20 The Convention adopted the position of the International Court of Justice in the case of Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, advisory opinion of 28 05 1951.Google Scholar
21 Pilloud, , Claude, , “Reservations to the Geneva Conventions of 1949”Google Scholar, offprint from the International Review of the Red Cross, Nos. 180–181, March and April 1976, p. 43. The provisions in question are Article 53 of the First Convention, Articles 85, 87, 99, 100 and 101 of the Third Convention and Articles 44 and 68 of the Fourth Convention.
22 Ibid., p. 12.
23 Ibid., p. 13.
24 Ibid., p. 26.
25 Ibid.
26 Note from the Ministry of Foreign Affairs of the USSR of 26 May 1955, Pilloud, , op. cit., p. 29.Google Scholar The other States entering reservations on this point were: Albania, the German Democratic Republic, the Byelorussian SSR, Bulgaria, the People's Republic of China, the Democratic People's Republic of Korea, Hungary, Poland, Romania, Czechoslovakia, the Ukrainian SSR and the People's Republic of Viet Nam (Ibid., p. 27).
27 According to Pilloud, (op. cit., p. 33)Google Scholar: “It should be pointed out that the Geneva Conventions, particularly the Third, do not raise any obstacle to the trial of prisoners of war for war crimes, nor to their sentence by the courts of the Detaining Power should they be found guilty. All the Third Convention lays down is that the enemy prisoner accused of war crimes shall be given the benefit of certain legal guarantees.”
28 For example, the United States and the United Kingdom ( Pilloud, , op. cit., p. 37).Google Scholar
29 Pilloud, , op. cit., p. 35.Google Scholar
30 Ibid., p. 41. In 1976, this reservation was still valid for four other States: the Republic of Korea, the Netherlands, New Zealand and Pakistan.
31 Ibid., p. 42.
32 Ibid., p. 41.
33 Ibid., p. 44.
34 See Torrelli, , op. cit., p. 88 Google Scholar: “The classic procedures for defending sovereignty in the law of treaties make it possible, first of all, for States to enter reservations.
35 In this connection, see Pilloud, , op. cit., p. 44.Google Scholar
36 For this purpose, it would be necessary to see the number and scope of the reservations made to the Additional Protocols. As of 31 December 1990, 99 States were party to Protocol I and 89 to Protocol II.
37 Pietro, Verri, Dictionnaire du droit international des conflits armés, International Committee of the Red Cross, Geneva, 1988, p. 102.Google Scholar
38 See Article 10–10–10–11 common to the Conventions; Article 5, para. 4 of Additional Protocol I.
39 Article 5, para. 4 of Additional Protocol I clearly states: “The functioning of such a substitute is subject to the consent of the Parties to the conflict” The only exception seems to be the obligation imposed on the Parties to the conflict to accept the offer made by the ICRC or by a similar organization to take on the humanitarian duties of the Conventions, in the absence of the Protecting Power or other substitute (Article 10–10–10–11, para. 3 of the Conventions and Article 5, para. 4 of Protocol I) but, even on this assumption, the reservation of consent to the exercise of the duties remains.
40 See, for example, Article 8–8–8–9, para. 1 and Article 9–9–9–10 common to the Conventions.
41 Sandoz, (op. cit., p. 278)Google Scholar observes in this connection: “This procedure does however require agreement at least on the umpire, which is probably one reason why it has never been successful.”
42 Nevertheless, in the case of a grave breach as defined in the Geneva Conventions and Protocol I or of other serious violation of these instruments, it appears that the Commission will be able to institute an enquiry, even without the agreement of the Party complained of (para. 2 (c)). On this point see Sandoz, , op. cit., p. 278.Google Scholar
43 The last sentence of this paragraph, however, does not appear in the text of the Third and Fourth Conventions.
44 In this connection, see also Article 126, para. 2 of the Third Convention; Articles 5, 35 para. 3, and 74 para. 1, of the Fourth Convention and Articles 64, para. 1, and 71, para. 4, of Protocol I.
45 Author's emphasis. See also, for instance, Article 81, para. 3, of Protocol I.
46 Author's emphasis. See also, for instance, Article 30, para. 3, of the Fourth Convention and Article 81, para. 4, of Protocol I.
47 Author's emphasis.
48 Author's emphasis.
49 This is a definition by the Institute of International Law ( Annuaire de l'IDI, 1954, Vol. 45–11, p. 292)CrossRefGoogle Scholar, quoted by Quoc, Nguyen et al. , op. cit., p. 397.Google Scholar
50 Ibid., p. 396. The theory of the reserved area has been positively recognized in Article 2, para. 7, of the United Nations Charter.
51 See Article 51–52–131–148 common to the Geneva Conventions.
52 Commentary on the Additional Protocols, p. 975, para. 3402.Google Scholar
53 Sandoz, (op. cit., p. 276)Google Scholar notes incidentally: “It [Article 86, para. 2 of Protocol I] cannot however impose sanctions where only the Contracting Parties are competent to do so, that is, in cases of breaches, other than grave breaches, of the Conventions or Protocol I.”
54 See Commentary on the Additional Protocols, p. 1350, para. 4457.Google Scholar
55 Sandoz, , op. cit., p. 280.Google Scholar The ICRC may, nevertheless, offer its services to the parties to the conflict (Article 3 common to the Conventions) but the latter need not accept them. In practice, however, ICRC activities are just as extensive as in international conflicts (Ibid.).
56 Torrelli, , op. cit., p. 94.Google Scholar
57 From this the Commentary on the Additional Protocols (p. 1387 Google Scholar, para. 4501) deduces that “the imperative needs of State security may not be invoked to justify breaches of the rules of the Protocol”. Here again, it is necessary to agree on what is meant by “imperative needs of State security”.
58 Ibid.
59 We might also have mentioned rules of general international law, such as those on the States' unilateral interpretation and assessment, which are not always calculated to facilitate the implementation of international law, including humanitarian law.
On this subject, see, for instance, Torrelli, , op. cit., pp. 89–90.Google Scholar
60 Another branch in which it has generally proved necessary to provide for specific guarantee mechanisms, is that of human rights. This is hardly surprising, in view of the close relationship between the two disciplines.
61 Op. cit., p. 266. The author adds that the 1968 International Conference on Human Rights held at Tehran had confirmed that interpretation. For an in-depth study of this obligation, reference may be made to Condorelli, , Luigi, and Chazournes, Boisson de, Laurence, , “A few comments on the obligation of States to ‘respect and to ensure respect for’ international humanitarian law ‘in all circumstances’”, Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge, en l'honneur de Jean Pictet, Geneva, The Hague, ICRC, Martinus Nijhoff Publishers, 1984, pp. 17–35.Google Scholar
62 Commentary on the Additional Protocols, pp. 35–37 Google Scholar, paras. 41–46.
63 Sandoz, , op. cit., p. 266.Google Scholar See also Commentary on the Additional Protocols, pp. 36–37 Google Scholar, paras. 43–46.
64 Commentary on the Additional Protocols, p. 36, para. 43.Google Scholar
65 Commentary on the First Convention, quoted by Sandoz, , op. cit., p. 266.Google Scholar See Article 8–8–8–9 common to the Conventions and Article 5 of Protocol I.
66 Ibid., p. 271. According to Torrelli, , op. cit., p. 102 Google Scholar: “The fault in this system lies in the need to obtain the consent of all the Parties to the conflict”.
67 See also Article 5, para. 1 of Additional Protocol I.
68 Sandoz, , op. cit., p. 274.Google Scholar
69 Ibid.
70 See above, pp. 116–118.
71 See the definition of the International Law Institute, Quoc, Nguyen et al. , op. cit., p. 827.Google Scholar
72 To be lawful, countermeasures must respond to an internationally unlawful act, be directed against the State that committed the act, be adopted only in case of necessity after a summons which has remained fruitless, and not be contrary to the jus cogens ( Quoc, Nguyen et al. , op. cit., p. 830).Google Scholar
73 See Article 46, Article 47 and Article 33, para. 3, of the First, Second and Fourth Convention respectively.
74 Articles 20; 51, para. 6; 52, para. 1; 53, para, (c); 54, para. 4; 55, para. 2 and 56, para. 4.
75 Commentary on the Additional Protocols, p. 242 Google Scholar, para. 812. Torrelli, (op. cit., pp. 91–92)Google Scholar refers, however, to the positions of certain States during the Diplomatic Conference on the Reaffirmation of Humanitarian Law, which leave a doubt regarding effective respect for this prohibition. Cameroon, for example, commented: “A State cannot reasonably be asked to fold its arms when faced with grave and repeated breaches of the Conventions and Protocols by its adversary”.
76 See Article 50–51–130–147 common to the Geneva Conventions and Articles 11, para. 4 and 85, paras 3 and 4 of Protocol I.
77 Commentary on the Additional Protocols, pp. 1054–1055 Google Scholar, paras 3649 and 3651.
