Background Paper on Developments Related to the
Convening of a Conference of the High Contracting Parties to the 4th Geneva
Convention:
- Resolution ES-10/3, which was adopted on 15 July 1997 by an overwhelming majority
(131-3, with 14 abstentions), in its operative paragraph 10 recommended "that the
High Contracting Parties to the Geneva Convention convene a conference on measures to
enforce the Convention in the Occupied Palestinian Territory, including Jerusalem, and to
ensure its respect in accordance with common article 1, and requests the Secretary-General
to present a report on the matter within three months." The Secretary-General of
the U.N. invited the Swiss Government, in its capacity as depositary of the Geneva
Conventions, to forward the necessary information that would enable him to present to the
General Assembly, within three months, the report called for in resolution ES-10/3.
- Through its embassies, the Swiss Government addressed a diplomatic note to all the High
Contracting Parties to the Fourth (4th) Geneva Convention stating that "it
is the responsibility of the States Parties to the 4th Convention, once they
have noted the recommendation addressed to them, to determine the action they plan to take
pursuant to the resolution." The Swiss Government also requested their "observations
as to how they consider following up on operative paragraph 10 of the resolution ES-10/3,
especially with respect to the holding of a conference as recommended and regarding the
results which could be considered."
- The Secretary-General of the U.N. presented his report on 14 October 1997, as well as an
addendum to the report issued on 10 November 1997. The report contained the responses
received by the Swiss Government to their note. As of the date of issuance of the report
and its addendum, 72 individual responses had been received, of which an overwhelming
majority was in support of the convening of the conference. In addition to the individual
responses, collective responses were received from the Coordinating Bureau of the
Non-Aligned Movement (NAM), the League of Arab States and the European Union (EU). The
Swiss initially did not accept the collective responses yet nevertheless included them in
their report to the Secretary-General. The EU Member States, who responded collectively as
well as individually, advocated careful preparation of the conference. Australia, Israel
and the United States were against the recommendation.
- On 13 November 1997, the 10th ESS was resumed for the second time to consider
the report of the Secretary-General. The Assembly adopted resolution ES-10/4 by a vote of
139 in favor and 3 against, with 13 abstentions. Resolution ES-10/4 reiterated "the
recommendation that the High Contracting Parties to the Geneva Convention convene a
conference on measures to enforce the Convention in the Occupied Palestinian Territory,
including Jerusalem, and to ensure its respect in accordance with common article 1." It
also contained a recommendation to the "Government of Switzerland, in its capacity
as the depositary of the Fourth Geneva Convention, to undertake the necessary steps,
including the convening of a meeting of experts in order to follow up on the
above-mentioned recommendation, as soon as possible with a target date not later than the
end of February 1998". The addition of a paragraph in the resolution regarding
the meeting of experts was added as a compromise with the EU to satisfy their call for
careful preparation prior to the conference in return for the reiteration of the
recommendation for the conference.
- Following the second resumption of the 10th ESS, the Swiss Government,
through its Mission to the U.N. in New York, conducted another round of consultations and
presented a list of questions to some interested parties, including Palestine, Israel,
USA, EU, Russia, Egypt and the Arab Group chairman. These questions focused on the format,
content, place, participation, outcome and procedures of the meeting of experts.
- On 5 December 1997, the Palestinian side presented its response to the Permanent
Observer of Switzerland to the U.N. emphasizing, inter alia, that the main function
of the meeting of experts should be to follow up on the recommendation to convene the
conference, which requires specific and thorough preparation. Further, the note made a
specific reference to the expected outcome of the meeting: "the subject matter of
the conference, and accordingly the meeting of experts, should be the enforcement of the
Fourth Geneva Convention in the Occupied Palestinian Territory, since 1967, including
Jerusalem, and consideration by the High Contracting Parties of measures to ensure respect
by Israel of the Convention in all circumstances in accordance with common article
1."
- On 5 March 1998, the Permanent Observer of Switzerland presented the Palestinian side,
through the Mission in N.Y. with an aide-memoire which was also presented on the same day
to the Israeli side in Tel Aviv, in addition to the International Committee of the Red
Cross (ICRC). The aide-memoire stressed that consultations conducted by Switzerland "showed
no consensus among the High Contracting Parties to the IVth Geneva Convention regarding
the appropriateness of convening such an international conference." It also noted
that some concerns were "expressed by several of the High Contracting
Parties" particularly "the wish to improve the situation on the ground
and the preoccupation not to jeopardize the peace process." It was further stated
that, "wishing to establish dialogue between the main interested parties and to
meet the expectations expressed in resolution ES-10/4 and in responses received during the
consultations, Switzerland, proposes to host a closed meeting (which could be repeated if
necessary) of representatives of Israel and the PLO" with the participation of
Switzerland in its capacity as depositary and the presence of the ICRC.
- The Palestinian position regarding the Swiss proposal was clearly outlined in a note
presented to the Swiss on 13 March 1998. It was noted that the Palestinian side understood
that some parties had expressed some genuine concerns with regard to the holding of the
conference of the High Contracting Parties and consequently advocated careful preparation,
and that "the idea of convening a meeting of experts as a preparatory step for the
conference was developed and it was formulated precisely so as to proceed at a slower, yet
firm, pace through a serious stage of preparation."
- Furthermore, the Palestinian side reiterated "its belief that it is imperative
to convene the meeting of experts of all the High Contracting Parties" and that
the Swiss proposal cannot be considered an implementation of the 10th ESS
resolutions. It was also indicated that since the target date had already expired, the
Palestinian side intended to call for the resumption of the 10th ESS in order
to reiterate the recommendations for the convening of both the conference and the meeting
of experts, and to extend the deadline for the latter. However, it was stated that "with
regard to attending meetings prior to the expert meeting, Palestine, in principle, has no
difficulty in attending any meeting provided that those meetings are clearly in
preparation for the expert meeting" and "are not a substitute or a step
to undermine it."
- The 10th ESS was resumed for the third time on 17 March 1998 to follow up on
the implementation of the provisions of the previous resolutions and specifically on the
recommendations for the convening of the conference and the meeting of experts. Resolution
ES-10/5 was adopted by an overwhelming majority, and it reiterated the previous positions,
particularly the recommendations for the convening of the conference of the High
Contracting Parties and the meeting of experts, and extended the target date until the end
of April 1998.
- On 13 April 1998, following the adoption of ES-10/5 the Swiss Government presented a new
proposal described as a package of two elements. The first element consisted of an expert
meeting of four, structured according to a 2+2 formula, which would include "experts
from the PLO, experts from Israel, with the ICRC and Switzerland". This meeting would
focus on discussing concrete issues and violations. Then, at the same time, the Swiss
would announce their intention of convening a meeting of all High Contracting Parties with
the objective of discussing the mechanisms and measures to apply the 4th Geneva
Convention in general and more particularly, but not exclusively, the application of the
Geneva Convention in occupied territories.
- On 29 May 1998, the Swiss Federal Department of Foreign Affairs presented to the
Palestinian side a note containing an invitation to the expert meeting of four (2+2),
which was to be held from 9 to 11 June 1998, in addition to a general explanation of the
package.
- The note made reference to General Assembly resolutions ES-10/3, ES-10/4 and ES-10/5, in
particular "bearing in mind the message conveyed by the General Assembly (ES-10/5,
para 3 to 6)." The note also explains that "the Swiss Government has decided
to propose a package of two measures which are intended to be mutually
complementary". The first measure would bring together, "at expert level, of
Israel and the Palestine Liberation Organization with the presence of representatives of
the International Committee of the Red Cross to a meeting in camera (which could be
repeated if necessary). This meeting will be chaired by Switzerland and is aimed at
examining measures and mechanisms which contribute to the effective application of the
IVth Geneva Convention in the Occupied Palestinian Territory, including the territories
annexed without recognition by the international community."
- The second measure of the package would be a meeting of experts of the High Contracting
Parties to the 4th Geneva Convention "to be held not later than in
early autumn of 1998," and which "should proceed to an analysis of the general
problems concerning the IVth Geneva Convention and seek possible remedies which would
contribute to the respect for the Convention (in general, and in particular in occupied
territories)." This meeting would be analogous to the periodical meeting, which
took place in Geneva at Villa Sarasin from 19 to 23 January 1998.
- The expert meeting of four between the Palestinian and Israeli experts, with the
presence of the ICRC and the chairmanship of Switzerland (2+2 formula), took place in
Geneva at Villa Sarasin between 9 and 11 June 1998.
- On 7 July 1998, the Permanent Observer of Switzerland to the U.N. sent a letter to all
permanent missions and delegations to the U.N., transmitting "a sample note that
the Government of Switzerland has recently addressed to the Governments of the States
Parties to the IVth Geneva Convention as well as to Organizations more particularly
concerned." The purpose of the note was "to propose to the States Parties
that the Swiss Government proceed as described and convene the meeting, which would take
place in principle from 27 to 29 October 1998." The note also described the
agreed package proposal made by the Swiss earlier and further detailed the objective of
the meeting as well as its nature, framework and procedures. The Swiss Government also
requested the States Parties to "communicate its views on the above-mentioned
proposal until 15 August 1998."
- In this note (7 July 1998), the Swiss made a reference to "several Emergency
Session Resolutions" of the General Assembly of the United Nations with specific
reference to resolution ES-10/5 paragraph 3 (recommendation for the conference) and
paragraphs 4 through 6 (recommendations to the Swiss government). The note reiterated that
"The Meeting should consider general problems regarding the IVth Geneva
Convention- in general and, in particular, in occupied territories. The object and format
of this meeting of experts would be analogous to that of the first periodical meeting on
International Humanitarian Law," and that this meeting "should be in the
nature of an exchange of views that could be structured along the following lines:
-identification of problems and their causes; - possible solutions; - possible follow
up." It was also stated that the chairman of the meeting, who would be a
representative of the depositary, would reflect the discussion in a report "to be
transmitted to the States parties and to the Secretary-General of the United
Nations."
- Answering the Swiss letter of 7 July, the Arab Group in N.Y. adopted a collective
response to be sent to the Swiss and proposed that response to the League of Arab States
in Cairo, which in turn sent it through the Chairman of the League Council. A similar
reply was also sent by the Chairman of the Coordinating Bureau of NAM in New York.
- The XIIth NAM Summit, which was held in South Africa from 2 to 3 September 1998,
reaffirmed the strong position by the Movement on the issue of the conference.
- As planned, the meeting of experts took place from 27 to 29 October. Experts from 117
States participated, as well as the ICRC and U.N. agencies.
- The final report of the expert meeting, "which reflected the views of the
chairman only", was distributed together with a diplomatic note around the middle
of December by the Swiss government through its embassies. The final report, as was
indicated by the note, comprises an introduction and a summary. The summary presents a
list of general problems, identified violations of the Fourth Convention, and the
principal measures proposed by the participants to overcome such problems and to prevent
future violations. The note referred once again to the package of two elements bearing in
mind resolutions ES-10/3, ES-10/4 and ES-10/5. It was also indicated that "Having
[Swiss] proceeded to an evaluation of the exchange of views and the discussions of the
recent Expert Meeting, and of the in camera meetings with representatives of Israel and
the Palestinian Liberation Organization, the Swiss authorities plan to carry out new
consultations with all States Parties, the International Committee of the Red Cross and
with other organizations particularly concerned. The consultations will examine the
results of the Expert meeting, and consider the advisability and modalities of possible
subsequent actions, bearing in mind the message conveyed to the States Parties by the
emergency special session of the UN General Assembly."
- In response to the request by the Arab Group that was supported by NAM, the 10th
ESS was resumed on 5 February 1999. The 10th ESS of the General Assembly
adopted resolution ES-10/6 on 9 February 1999. Exhaustive rounds of negotiations were held
with the EU troika, with the main contentious issue being the date of the convening of the
Conference. The compromise was 15th of July 1999, this way the Europeans got
the time they needed for preparations and the Palestinian and Arab side got a specific
date for the convening of the conference. Resolution ES-10/6 also requests the Secretary
General to make the necessary facilities available to enable the High Contracting Parties
to convene the conference.
- On 9 March 1999, the Permanent Observer of Switzerland to the United Nations addressed a
sample note to all the Heads of Permanent Missions and Heads of Delegations to the United
Nations seeking "clarifications with regard to the modalities of a conference as
recommended by Resolution ES-10/6". The note contained 5 questions to the High
Contracting Parties on issues related to the decision to convene the conference, position
of the parties principally concerned, rules of procedure, the outcome of the conference
and costs. The date set by the Swiss to receive the answers was by 10th of
April.
- On 1 and 6 of April 199, the Arab Group and the Coordinating Bureau of the NAM
consecutively, presented letters containing their collective response to the Permanent
Observer of Switzerland to the UN in New York. The responses maintained that questions
related to the principle of convening the conference had become moot in light of the
consistent and repeated support of the overwhelming majority of Member States. They also
contained ideas and suggestions on the modalities and rules of procedure. The responses
attached importance to the positions of the parties concerned and advocated broad
participation, but without allowing any party to have a veto regarding the convening of
the conference. Regarding the outcome of the conference, the responses suggested that it
could take the form of a resolution or a declaration with the support of a very broad
majority, with the objective of enabling the High Contracting Parties to carry out their
responsibilities to ensure respect of the Convention in the Occupied Palestinian
Territory, including Jerusalem.
- On 7 May 1999, the Permanent Observer of Switzerland to the U.N. in New York informed
the Observer of Palestine that a broad majority of the High Contracting Parties responded
positively to the convening of the conference and only 2 states had opposed the convening
of the conference and one expressed reservation (a central American country). Moreover,
the U.S. informed the Swiss that, if convened, they would not participate in the
conference. The Swiss Ambassador also informed the Palestinian side of the Swiss decision
to move the consultations and discussions on this issue to Geneva and also wanted to
discuss the Palestinian view of the outcome of the conference. In this regard, the
Palestinian side responded by emphasizing its readiness to discuss the outcome but that
priority should be given to the steps the Swiss intended to take in preparation for the
convening of the conference in accordance with the resolutions of the General Assembly.
With regard to moving the consultations from New York to Geneva, the Palestinian side
informed the Swiss of the Palestinian decision that follow up on this issue had been
delegated to the Palestine Mission in New York in addition to a similar wish expressed by
the Arab League.
- On 10 May 1999, the Swiss informed the Palestinian Ambassador in Geneva of an outline
regarding the outcome of the consultations and the Swiss view that they had fulfilled
paragraph 7 of the resolution ES-10/6. The breakdown of this information was under the
headings: Invitation to the Conference; Participation; Palestine participation; Rules of
procedure; Chairmanship of the conference; Outcome and costs. The way the information was
broken-down was by outlining the different responses using the same unsubstantiated
language as follows: "a group of states said this" and "a group of states
said that" and so on. The Swiss side also informed the Palestinian Ambassador that
the Swiss government had decided to establish a Group of 26 states to consult and advise
regarding the convening of the conference. The formation of this group was not subject to
any prior consultation with the Palestinian side and the criterion of the selection of the
members of the group was unclear. Palestine and Israel were to be informed of the
decisions and discussion outcomes, but were not to be part of the group which consists of:
The Five Permanent Members of the Security Council; European Troika (Germany, Finland and
Austria); another three European States: Norway, Poland and Hungary; Arab League: Tunis,
Egypt and Morocco; Non-Aligned Movement: South Africa, Colombia and Bangladesh; Latin
America: Venezuela; Asia: Sri Lanka, Pakistan, India and Japan; OIC: Qatar; Africa: Ghana;
Canada and Australia.
- On 12 May 1999, the delegation of the Arab Group met with the Swiss Ambassador in New
York. The delegation outlined the position of the Arab Group in N.Y. regarding the
establishment by the Swiss of the Group of 26 states and its composition. The Arab Group
raised questions regarding the establishment of this group and its composition as well as
the decision to move consultations to Geneva. They also emphasized that this group should
not deal with substance and outcome, but be limited to the procedural preparations for the
conference, and that the outcome should involve all the High Contracting Parties and
especially the representatives of the protected persons. At the meeting, the Swiss
Ambassador informed the delegation that the Group of 26 states met in Geneva on the same
day and decided to form two working groups: one dealing with rules of procedure or
modalities of the conference and the second dealing with substance and outcome.
- A Swiss "non-paper" on modalities was presented to the meeting of the working
group on modalities and procedures on 18 May 1999. This "non-paper" contained a
table of different options on the 5 questions that has been raised earlier by the Swiss
government during the consultations (who could take the initiative to convene the
conference; importance of the position of the parties, including the formula for the
participation of "PLO/Palestinian Authority"; decisions regarding modalities;
outcome and costs). It was indicated that this "non-paper" did not reflect the
Swiss position, nevertheless, it clearly seemed to be advocating the transformation of the
conference into an informal meeting. Moreover, the title of the conference was misquoted
and the participation of Palestine became subject to anomalous formulas.
- On 19 May 1999, the Coordinating Bureau of NAM, while not yet aware of the Swiss
"non-paper", met to consider developments on the issue and decided that the
Chairman of the Coordinating Bureau of NAM send a follow up letter to the Swiss Ambassador
at the UN in New York. The letter was a follow up to the previous letter of 6 April with a
more detailed position regarding: preparations as requested by paragraph 7 of ES-10/6;
participation, including the participation of Palestine; invitation to the conference;
rules of procedure, chairmanship and bureau; costs; consultations on modalities and
outcome of the conference. Furthermore, the letter dealt with the more recent
developments, especially the establishment of the Group of 26 states and that this group
should deal with the procedural preparations for the convening of the conference.
- In response to the Swiss "non-paper", the Palestinian side drafted a position
that was endorsed by the Arab Group and NAM. This position emphasized that the options
mentioned in the Swiss "non-paper" ignored the positions taken by the broad
majority of the High Contracting Parties and that the central point in this
"non-paper" appeared to advocate the convening of "an informal
meeting" of the High Contracting Parties. This flawed idea negated the essence of the
entire exercise and ignored the fact that an informal Expert Meeting had already been
convened. The position also raised some specific comments regarding the options outlined
in the "non-paper" which reaffirmed once more the collective position of NAM. A
point of particular concern involved the options related to the participation of "the
Palestine Liberation Organization/ Palestinian Authority." It was emphasized that
Palestine (and not PLO or Palestinian Authority) would participate in accordance with
paragraph 9 of resolution ES-10/6, and that there was no need to adopt the anomalous
formula used in some of the Red Cross conferences.
- Prior to the meeting of the Group of Friends (Group of 26 states), a meeting at the
level of experts was called by the Swiss to inform them of a set of questions that would
be raised during the meeting next day at the ambassadorial level. The set of questions
included: Should we still convene the conference in light of the change of the Israeli
government? What effect will this conference have on the ground and on the peace process?
- At the meeting of the Coordinating Bureau of NAM, on 26 May 1999, it was decided that
NAM's Committee on Palestine would hold open-ended meetings on the subject, with a view to
follow up and prepare necessary documents, including the draft rules of procedure and an
outline for the objectives of the conference.
- On 26 May 1999, the Swiss Ambassador in Geneva convened a meeting of the Group of 26.
The Swiss chair distributed a copy of a letter that they had sent to the Secretariat of
the U.N. with detailed inquiries about the kind of facilities the U.N. intended to provide
for the conference, while indicating that the Swiss government was in no position to
consider absorbing whatever remaining costs there might be. Another version of the Swiss
"non-paper" was also distributed, which essentially added a brief explanation on
each of the five questions, giving some factual reflections especially on the outcome of
the written consultations with the High Contracting Parties, but maintaining the same
tables of options. It was also emphasized that the "non-paper" reflected the
answers the Swiss government received on its written consultation and the informal
discussions thereafter. Other changes included attempts to correct the title of the
conference, which nevertheless remained inaccurate, and deletion of the evaluation of each
option, replace by the insertion of comments instead.
At the beginning of this meeting the Swiss chair continued to pose a
number of questions regarding the principle of convening the conference despite the clear
position of NAM and support of the "broad majority." These questions included
the possibility of this resolution affecting the prospects of peace in the Middle East and
questions on the participation of observers. The discussion in this meeting was largely
shaped by the questions with obvious differences in views appearing. The position of NAM
was clearly expressed by some members of the movement and by the Chairman of the Arab
Group in Geneva as well. The Swiss Chairman summarized the meeting as follows: a) there
will be no discussion on a formal or informal meeting, but a conference of the High
Contracting Parties; b) it will be difficult for the depositary to call for the meeting
while some States question its legality but it is the duty of the depositary to inform the
U.N. that a broad majority support the convening of the conference; c) the conference
should be convened even if one party to the conflict rejects it; d) that, according to the
EU position, the participation of Palestine needs to be studied. The Swiss chair indicated
during the meeting that they did not have a copy of the rules of procedures of the
diplomatic conference of the additional protocols of 1977 (and that Switzerland was not in
a position to present any proposals or documents).
- On 27 May 1999, Dr. Nabil Shaath, Palestinian Minister for Planning and International
Cooperation met with the Consul Generals and representatives of the EU members to discuss
the issue of convening the conference. The Minister emphasized the Palestinian
determination to convene the conference on its date, regardless of the outcome of the
Israeli elections, and that the conference should be a formal meeting of the High
Contracting Parties. He also indicated the Palestinian side's readiness to show
flexibility regarding the outcome of the conference in light of positive developments on
the ground. The Minister also emphasized that Palestine should participate as a full
participant in accordance with resolution ES-10/6.
- On 31 May 1999, the Swiss Ambassador to the U.N. in Geneva met with the Tunisian
Ambassador, the Chairman of the Arab Group, and informed him of the Swiss intention to
send a letter in mid June 1999. The letter would stress that a broad majority of the High
Contracting Parties support the convening of the conference and that the U.N. has agreed
to cover the costs of convening the conference at the General Assembly Hall in Geneva. At
the same time, the Swiss Ambassador indicated that some points remain unsolved and needed
to be decided upon before the middle of June. These points include: 1) the participation
of Palestine; 2) the participation of observers; 3) the rules of procedures (which he
provided a copy of at this meeting); 4) the outcome of the conference and 5) who should
chair the conference, noting that Switzerland would be ready to accept the chairmanship on
the condition that agreement is reached on the above points.
- A meeting of the Group of 26 on the level of experts was convened on 4 June 1999. The
Swiss representative informed the meeting that they received a positive reply from the
U.N. Secretariat regarding the services needed for the conference. The group discussed,
inter alia, the issue of the rules of procedure and agreed to report to the ambassadorial
meeting on 9 June 1999, that there are two proposals regarding the rules of procedure, the
first is the proposal of NAM (which will be discussed today in NY) and the European
proposal of a "sui generis" conference.
- On the same day the Coordinating Bureau of NAM met in New York and adopted the rules of
procedure of the diplomatic conference of 1977, with minor amendments, as draft rules of
procedure for the conference. Another paper was also adopted, which contained further
clarification on NAMs position regarding the Movement's commitment to the 15 July
1999 date for convening the conference, the duration of the conference, the invitation to
the conference, the rules of procedure as adopted by NAM as a basis for consideration, the
full participation of Palestine, and the participation of observers. It was also decided
that the adopted two documents be sent to Geneva to be proposed to the Group of 26 in its
next meeting, scheduled for 9 June 1999.
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