EXPERT MEETING ON THE FOURTH GENEVA CONVENTION

27-29 October 1998 Geneva

Chairman’s Report

I Introduction

An expert meeting on the Fourth Geneva Convention, relative to the protection of civilian persons in time of war (the Fourth Convention), took place in Geneva from 27 to 29 October 1998. It was held in order to analyze general problems regarding the application of the Fourth Convention- in general and, in particular, in occupied territories- to consider measures aimed at overcoming those problems and to examine the necessary means to implement such measures.

Representatives of 118 States Parties to the Fourth Convention and 15 delegations of observers took part in the Meeting. Participants were provided with a report for the Meeting prepared by the International Committee of the Red Cross.

The Meeting was convened by the Swiss authorities as part of a package of measures that emerged from a long consultation process with the States Parties to the Fourth Convention and the organizations most closely concerned, bearing in mind the message conveyed to the States Parties by an emergency special session of the United Nations General Assembly.

In his opening statement, which is attached to the present report, the Chairman pointed out that several delegations had expressed diverging views as to whether the Meeting constituted a preliminary step to the conference recommended in Paragraph 3 of resolution ES-10/5 of the General Assembly of the United Nations. He emphasized that the Swiss authorities deemed that the holding of this Meeting, which would not be devoted to any specific situation, should not in one way or another prejudice the positions of the States Parties with regard to the implementation of resolution ES-10/5 or possible recommendations that the General Assembly of the United Nations might make on these questions in the future. Indeed, it would be up to the States Parties to evaluate the results of the meeting and to consider the advisability and modalities of possible subsequent action. In the course of the proceedings, several delegations later referred to their own views on the matter and to concrete examples. In addition, reference was made to particular regional contexts to illustrate problems of a general nature regarding the application of the Fourth Convention. In instances where recounting such examples, or the examples themselves, went further than simply illustrating general problems, the Chairman intervened to remind the delegations of the rules of the Meeting. In conformity with what was announced by the Chairman in his opening statement, this report makes no reference either to a specific situation or to a particular regional context.

The Chairman also stressed that the Expert Meeting, which was organized along the lines of the First Periodical Meetings on International Humanitarian Law in January 1998, was not held as part of the process of Periodical Meetings. The Expert Meeting was not held either in the framework of the International Red Cross and Red Crescent Movement, or under the auspices of the United Nations. Moreover, in view of the general principles governing the Meeting, the participants were not called upon to proceed to elections, to cast votes or to reach any decisions.

The Chairman informed the attending delegations that concerning the questions of the participation of the Palestinian delegation and that of the delegation of the Federal Republic of Yugoslavia, consultations had led to the same solutions as those adopted for the 26th International Conference of the Red Cross and the Red Crescent in 1995, and for the First Periodical Meeting on International Humanitarian Law in 1998.

With regard to the issue of Palestine, the Chairman read the declaration contained in his opening statement, which has been distributed to all participants. At the request of the Palestinian delegation, and with the agreement of the principle delegations concerned, the Chairman gave clarifications on, among other things, the term "Palestine". These clarifications are enclosed on the appendix to this report.

A declaration by the Federal Republic of Yugoslavia was also distributed to the delegations. The delegations of the Republic of Croatia, of the former Yugoslav Republic of Macedonia and the Republic of Slovenia also prepared a declaration for the participants. Both declarations are included in the appendix.

At the end of the Meeting, the Chairman presented his summary of the discussions. This summary identifies general problems regarding the application of the Fourth Geneva Convention- in general and, in particular, in occupied territories-, considers a number of possible measures aimed at overcoming these problems and examines the means required to implement such measures. The summary is the Chairman’s personal account of the Meeting, and is not binding on the delegations which participated at it.

II Chairman’s Summary

  1. General Problems Identified

It emerged from the exchange of views and from the discussions that it is not technical problems that are hindering the application of the Fourth Geneva Convention but essentially political and legal disputes over its applicability:

  • In today’s armed conflicts, the great suffering of the civilian population is most often not only the result of ignorance of the obligations contained in the Fourth Geneva Convention, but of political and legal disputes over its applicability or the duration of its applicability. Such problems arise as a result of States parties concerned denying the existence of an international armed conflict (or any armed conflict beyond that of a police operation or the struggle against terrorism), or contesting the legal status of certain territories, or claiming that the Convention lacks clarity on various issues, and so forth;
  • The obligation of States Parties to ensure respect for the Convention’s rules in accordance with its Article 1, is frequently subordinated to considerations of political expediency;

 

  • Parties to an armed conflict often fail to agree on the establishment of protected zones.

2. Identified Violations of the Fourth Convention

In light of the general problems listed above, the following violations of the Fourth Convention were identified by the participants in particular. It emerges in particular that in many recent armed conflicts and in situations on occupied territories, civilians are no longer merely victims of hostilities but have become the actual target of them:

In armed conflicts in general:

-Killing, torture, rape, pillage, hostage-taking;

-Displacement of civilians not justified by security reasons;

-Repatriation of foreign nationals in violation of the principle of non-refoulment, or their detention under inhumane conditions;

-Violation of family rights;

-Refusal to grant providers of humanitarian assistance or religious personnel access to civilian victims, particularly children, women, the elderly, and the medically dependent;

-Deportation or expulsion of civilians, as in the practice of ethnic cleansing;

-Use of anti-personnel mines to terrorize civilians or to prevent their safe return;

-Destruction of hospitals and places of worship;

-Destruction of property without military justification;

-Destruction of the environment.

In occupied territories:

-Destruction of the economic and social structures of the occupied territory, failure to respect local customs, substitution of the occupying power’s laws for those previously in force;

-Restrictions on the local population communication with the outside world, thus impeding the intellectual, economic and structural development of the occupied territory;

-Destruction of the cultural heritage;

-Deportation and displacement of civilians not justified by the safety of the civilians themselves or by imperative military considerations;

-Arbitrary detention;

-Confiscation and destruction of property not rendered absolutely necessary by military operations;

-Transfer by the occupying power of parties of its own population to the occupied territory, which could amount to the territory’s gradual annexation;

-Ill-treatment of and violence against civilian populations, such as rape, torture, summary execution and measures of collective punishment- sometimes continuing.

 

  1. Principle measures proposed by the States Parties to solve the problems and to

prevent future violations

On the basis of the identified violations of the Fourth Convention, the participants at the Experts Meeting examined aspects of possible solutions and reviewed appropriate measures to implement such solutions. The participants proposed a series of concrete measures aimed at overcoming the problems encountered and to prevent future violations. Some of these measures explicitly require the States Parties to do everything to ensure full respect for the Fourth Convention in armed conflicts in general and in occupied territories in particular. The participants were unanimous in underscoring the need for better implementation. Nevertheless, diverging views were expressed concerning some of the envisaged measures, in particular, those which were proposed in relation to specific situations. The measures which were discussed are the following:

-Ensure observance, in all circumstances and by all parties to an armed conflict, including the occupiers and the inhabitants of occupied territory, of the principles of humanity and of the dignity to which all human beings are entitled;

-Recognize that the humanitarian objective of the Fourth Convention, i.e. the protection of the civilian population during armed conflict and in situations of occupation, must not be jeopardized by unduly narrow interpretations of the provisions defining the Convention’s applicability;

-Ensure, both in international and non-international armed conflicts, full and non-selective respect for the Convention in accordance with Article 1 common to the 1949 Geneva Conventions;

-Accede to other instruments of international humanitarian law (IHL) protecting the civilian population in armed conflicts, such as the two Additional Protocols to the 1949 Geneva Conventions, Protocol II to the 1980 UN Convention on the prohibition of anti-personnel mines;

-Encourage, through diplomatic dialogue, parties to an armed conflict to ensure respect for the Fourth Convention;

-Organize regular meetings of States Parties to examine, in the tradition of the humanitarian dialogue- for example, within the framework of Periodical Meetings as decided at the 26th International Conference of the Red Cross and the Red Crescent-, general problems regarding the application of the Fourth Convention;

-Organize meetings which would be attended by States or by entities particularly concerned as well as, when appropriate, by certain number of States Parties to examine specific situations;

-Examine, both in general and in particular cases, the advisability of convening meetings of States Parties on specific situations for the purpose of determining i.a. if and to what extent such meetings can contribute to making concrete improvements to the fate of victims; and examine the modalities for convening and holding such meetings;

-Co-operate in taking sanctions and other coercive measures which would be decided by the Security Council in accordance with the UN Charter against States Parties which seriously and systematically violate the Convention, and in allocating just compensation to the victims;

-Prosecute on a national level individual violators, and support international efforts to try alleged perpetrators of war crimes, including through ratification of the Statute of the International Criminal Court;

-Recognize, where appropriate, the competence of the International Humanitarian Fact-Finding Commission pursuant to Article 90 of Additional Protocol I to the 1949 Geneva Conventions, or make use of the procedure which allows the Commission to open an inquiry with the consent of the parties to a conflict;

-Enact appropriate national legislation to prevent and repress violations of IHL, bearing in mind the availability of the ICRC advisory services;

-Establish programs to disseminate IHL in armed forces and in civilian society, and support the activities of the ICRC and of the National Red Cross and Red Crescent Societies in this regard;

-Establish a mechanism allowing States Parities to exchange views and experiences in the field of dissemination;

-Encourage the United Nations to establish a program for teaching IHL to peacekeeping forces

that may also serve as a model for the dissemination of IHL in national armed forces;

-Establish national committees to assist different branches of government in the implementation of IHL;

-Support the activities of the ICRC and the National Red Cross and Red Crescent Societies, as well as those of the non-governmental organizations that provide humanitarian assistance.

 

Geneva, 11 December 1998

The Chairman of the Expert
Meeting on the Fourth
Geneva Convention

Walter B. Gyger