Background Paper on Developments Related to the Convening of a Conference of the High Contracting Parties to the 4th Geneva Convention:

  1. 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.
  2. 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."
  3. 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.
  4. 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.
  5. 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.
  6. 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."
  7. 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.
  8. 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."
  9. 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."
  10. 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.
  11. 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.
  12. 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.
  13. 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."
  14. 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.
  15. 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.
  16. 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."
  17. 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."
  18. 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.
  19. 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.
  20. 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.
  21. 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."
  22. 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.
  23. 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.
  24. 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.
  25. 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.
  26. 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.
  27. 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.
  28. 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.
  29. 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.
  30. 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.
  31. 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?
  32. 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.
  33. 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.
  34. 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).

  35. 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.
  36. 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.
  37. 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.
  38. 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 NAM’s 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.