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Published online by Cambridge University Press: 07 July 2009
When the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts was officially opened on 20 February 1974 by the Swiss Minister for Foreign Affairs, Mr. Pierre Graber, much preparatory work had preceded this event. Some of this was recorded in earlier Volumes of this Yearbook. We will first continue this record with a description of the events which took place since the last report (June 1972) and then describe the proceedings of the Diplomatic Conference itself.
1. 2 N.Y.I.L. (1971) p. 68; 3 N.Y.I.L. (1972) p. 18
2. A/8781, 20 September 1972.
3. See my article in 3 N.Y.I.L. (1972) p. 18.
4. NGO stands for Non Governmental Organizations.
5. A/8803, 9 October 1972; the group was composed of experts from Czechoslovakia, Mexico, Nigeria, Peru, Romania, Sweden and the USSR.
6. A/8777, 5 September 1972.
7. Besides the Secretary-General's report, the General Assembly also had at its disposal an Interim Report on Napalm and Incendiary Weapons: Legal and Humanitarian Aspects, prepared by SIPRI, the Stockholm International Peace Research Institute, on the basis of papers discussed at a symposium held at SIPRI in August 1972. This report went beyond the report of the Secretary-General in that it concentrated first and foremost on the legal and humanitarian issues raised by the contemporary use of napalm and other incendiary weapons.
8. Other expert meetings dealt with the problem of penal sanctions, the question of a distinctive sign for civil defence, and signalling and identification systems for medical transports by land and sea.
9. Texts of the Conventions in 75 U.N.T.S.; Trb. 1951 Nos 72–75; Schindler, D. and Toman, J., The law of armed conflicts (Leyden; Sijthof, 1973) p. 289 et seq.Google Scholar
10. Conspicuously, in this text all reference to Article 3 common to the 1949 Geneva Conventions has been omitted; cf 3 N.Y.I.L.(1972) p. 18, at pp. 56–57.
11. For the use of this term, see, by this author, The Law of Warfare (Leyden: Sijthoff, 1973) pp. 24–27.Google Scholar
12. Texts of the Regulations in D. Schindler and J. Toman, op. cit., p. 69 et seq; De Martens N.R.G., 2éme série, Vol. XXVI, pp. 949–979 (1899); De Martens N.R.G., 3éme série, Vol. III, pp. 461–503 (1907).
13. 3 N.Y.I.L. (1972) p. 18 at p. 34.
14. Draft Protocol II does not contain a similar provision.
15. 3 N.Y.I.L. (1972) p. 18, at pp. 35–36.
16. Ibid., at p. 35.
17. Notably in GA Res. 2444 (XXII) and 2675 (XXV); see 2 N.Y.I.L.(1971) p. 68
18. 3 N.Y.I.L.(1972) p. 18, at pp. 39–40.
19. Ibid., at pp. 37–38.
20. Ibid., at pp. 40–45.
21. Ibid., at p. 28. Article 20 in Draft Protocol II is identical to Article 1–33.
22. Text of the Declaration in De Martens N.R.G., 1 ére série, Vol. XVIII, pp. 474–475; D. Schindler and J. Toman, op.cit., p. 95 et seq.
23. This Article is not repeated in Draft Protocol II.
24. Article II-21 is couched in identical language.
25. See, by the present author, Belligerent Reprisals (Leyden: Sijthoff, 1971) p. 184 et seq.Google Scholar
26. In Draft Protocol II, the ideas behind these Articles are reduced to their simplest form in Article 22, which provides that “it is forbidden to order that there shall be no survivors, to threaten an adversary therewith and to conduct hostilities on such basis”; crude language which reflects the harshness and cruelty which often characterizes internal armed conflict
27. Cf. 3 N.Y.I.L. (1971) p. 18 at pp. 46–49.
28. Ibid., at p. 49.
29. Text in 94 L.N.T.S. p. 65; D. Schindler and J. Toman, op. cit., p. 109 et seq.
30. Ibid., at pp. 28–30, 53–55.
31. To demonstrate the degree of technical precision displayed in the report, it may be interesting to quote this particular construction rule in full:
“A fragmentation warhead primarily adapted for use against combatants in the open shall be constructed in such a way that if its effects hit standing, unprotected soldiers operating in completely open and flat country with no obstacles, the number of soldiers hit by four or more fragments with an impact energy exceeding 5 joules may not, on the average, exceed 20 per cent of the number of soldiers put out of action”.
32. See: Report on the study by the XXIInd International Conference of the Red Cross of the Draft Additional Protocols to the Geneva Conventions of 12 August 1949, published by the ICRC in January 1974 as an official document for the Diplomatic Conference.
33. Ibid., para 7; emphasis as in the original.
34. Cf. 3 N.Y.I.L. (1972) p. 18, at pp. 54–55.
35. Report, paras. 38–46.
36. Ibid., paras 93–100.
37. A/9123, 19 September 1973.
38. A/9215 (Vols. I and II), 7 November 1973.
39. Annexed to a note of the Secretary-General on the subject(A/9073, 9 July 1973).
40. The report of the Legal Affairs Committee was published as Doc. 3336 on 13 September 1973. The Recommendation invites the Committee of Ministers moreover to “study and promote the adoption of a system of supervision by an impartial international organ of the observance of the rules of humanitarian law” and to “intensify their efforts to ensure dissemination of and instruction in the international humanitarian conventions and their application, not only to military personnel at all levels, but also in schools and universities, including law schools, medical schools and teachers' colleges”.
41. Doc. CDDH/15.
42. CDDH/13/Rev.2.
43. CDDH/21.
44. Third plenary meeting, 27 February 1974; the voting was 64 to 28, with 14 abstentions.
45. CDDH/12; fourth plenary meeting, 28 February 1974.
46. Letter of 31 October 1973, received by the Swiss Federal Council on 3 December 1973 and notified to the other Parties to the Conventions by a note dated 18 January 1974.
47. CDDH/14; fifth plenary meeting, 28 February 1974.
48. CDDH/22; seventh plenary meeting, 1 March 1974.
49. CDDH/2/Rev.1: Rules of Procedure; Chapter X, Rule 58: National liberation movements.
50. The list was as follows: the Palestine Liberation Organization (PLO), the Mozambique Liberation Front (FRELIMO), the Angolan People's Liberation Movement(MPLA), the Angolan National Liberation Front(FNLA), the African National Congress(ANC), the Pan-Africanist Congress(PAC), the Zimbabwe African National Union(ZANU), the South-West African People's Organization(SWAPO), the Somali Coast Liberation Front(FLCS), the Djibouti Liberation Movement(MLD), the Seychelles People's Unity Party(SPUP), the Sao Tomé and Principé Liberation Movement(MLSTP) and the Comoro National Liberation Movement(MOLINACO)
51. CDDH/33; seventh plenary meeting, 1 March 1974.
52. CDDH/23; ninth plenary meeting, 4 March 1974.
53. The present author acted as Rapporteur of this Ad Hoc Committee.
54. Ninth plenary meeting, 4 Match 1974.
55. Tenth to nineteenth plenary meetings.
56. CDDH/I/5, originally proposed by Algeria, Czechoslovakia, the German Democratic Republic, Hungary, Poland, the Soviet Union and Tanzania.
57. CDDH/I/11, originally proposed by Algeria, Australia, Cameroon, Egypt, Ivory Coast, Kuwait, Libya, Nigeria, Norway, Pakistan, Sudan, Syria, Democratic Yemen, Yugoslavia and Zaire.
58. CDDH/I/12; Argentina, Austria, Belgium, Federal Republic of Germany, Italy, Netherlands, Pakistan, United Kingdom. The amendment also contained a (first) paragraph repeating Article 1 of the Geneva Conventions, whereby the Parties to the Protocol would “undertake to respect and to ensure respect” for it in all circumstances.
59. CDDH/48(Report of Committee I), para 14.
60. CDDH/53.
61. CDDH/50(Report of Committee III), in particular para. 49.
62. CDDH/47(Report of Ad Hoc Committee on Conventional Weapons).