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Review 2017-2018 - Volume 56

Conference on the ICRC updated Commentary on the First Geneva Convention:
Capturing 60 years of Practice
SAMUEL LONGUET (ULB), JULIEN TROPINI (ULB), ALICE SINON (UCL) &
PAULINE LESAFFRE (UCL)

Table of Contents
  1. Welcome and General Introduction by Lieve Pellens,
    President of the Belgian Interministerial Commission for International Humanitarian Law
  2. The ICRC Commentaries Project: Objectives and Outcomes by Jean-Marie Henckaerts,
    Head of Commentaries Update Unit, ICRC Legal Division
    1. Keynote Speaker: Jean-Marie Henckaerts, Head of Commentaries Update Unit,
      ICRC Legal Division
    2. Discussion
      1. What Has Been the Feedback from States So Far?
      2. Are the Geneva Conventions Now Part of Customary International Law
        or Only Treaty Law?
      3. Where Does the New Commentary Contradict the Original Commentary?
      4. Are Academics the Only Ones that Have Been Consulted During the Research
        or Were Other Experts Involved?
  3. Panel I : The Obligation to ‘Ensure Respect’ for the Geneva Conventions
    1. Chair: Paul Berman, EU Council Legal Service
    2. Keynote Speaker: Liesbeth Lijnzaad, Ministry of Foreign Affairs of The Netherlands
    3. Commentator: Ola Engdahl, Ministry of Foreign Affairs of Sweden
    4. Discussion
  4. Panel II: Conflict Classification (IAC and NIAC)
    1. Chair: Jan Wouters, University of Leuven
    2. Keynote Speaker: Dapo Akande, University of Oxford
    3. Commentator: Lone Kjelgaard, Office of Legal Affairs, NATO
    4. Discussion
  5. Statement of Koen Geens, Belgian Minister of Justice
  6. Panel III: The Protection of the Wounded and Sick in Both IAC and NIAC
    1. Chair: Jean-Marie Henckaerts
    2. Vaios Koutroulis, Free University of Brussels (ULB)
      1. Scope of Application of Common Article 3: Application to a Party’s Own Armed Forces
      2. Scope of Application of Common Article 3: The Exclusion of the Conduct of Hostilities)
      3. Protection of Wounded and Sick: Consent for Humanitarian Activities in NIACs
      4. Protection of Wounded and Sick: The Case of Acts Harmful to the Enemy
    3. Commentator: Titus K. Githiora, Kenya School of Governmen
    4. Discussion
  7. Panel IV: Implementation of the Geneva Conventions, Including Dissemination and Criminal Aspects – Developments and Noveltie
    1. Chair: Bakhtiyar Tuzmukhamedov, Russian Association of International Law
    2. Speaker: Eve La Haye, ICRC
      1. Enacting Legislation Which Provides Effective Penal Sanction
      2. The Obligation to Search for and Prosecute Alleged Offenders
      3. Critical Assessment: Has the Grave Breaches Regime Worked?
    3. Chair: Bakhtiyar Tuzmukhamedov, Russian Association of International Law
    4. Commentator: Laura De Grève, Belgian Red Cross (Flanders) -
      Implementation of the GCs through Dissemination
      1. Legal Obligation to Disseminate
      2. Actors in Dissemination
      3. Concluding Observations
    5. Discussion
    6. Closing Remarks
      1. Didier Reynders, Belgian Minister of Foreign Affairs
      2. Pierre Apraxine, ICRC Delegation to the EU, NATO and the Kingdom of Belgium
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The Conference on the ICRC updated Commentary on the First Geneva Convention took place at the Egmont Palace in Brussels, on 29 September 2017. It was organized jointly by the Belgian Interministerial Commission for Humanitarian Law, the Belgian Red Cross and the International Committee of the Red Cross (ICRC), with the support of the Belgian Society for International Law.

The following pages provide a summary of the contents of the presentations and discussions held during the conference.

I. Welcome and General Introduction by Lieve Pellens, President of the Belgian Interministerial Commission for International Humanitarian Law

Mesdames, Messieurs,

Au nom de la Commission interministérielle de droit humanitaire, de la Croix-Rouge de Belgique et du CICR, et avec le soutien de la Société Belge de Droit International, j’ai l’honneur et le plaisir de vous accueillir dans ce cadre magnifique à la Conférence consacrée à la version actualisée du Commentaire de la Première Convention de Genève.

Le Mouvement de la Croix-Rouge est bien connu de tous mais la Commission interministérielle de droit humanitaire (CIDH) l’est beaucoup moins. Je profite donc de cette occasion pour vous présenter la Commission que j’ai le privilège de présider depuis un an. La CIDH belge est l’une des plus anciennes commissions nationales de mise en œuvre du Droit international humanitaire (DIH). En effet, elle a été créée par le Gouvernement belge en vertu d’une décision du conseil des ministres du 20 février 1987 qui s’est vue confirmée et officialisée par un Arrêté royal du 6 décembre 2000. Par décision du Premier Ministre en 1998, cet organe fait office de comité consultatif national au sens de la Résolution II de la Conférence de La Haye de 1954.

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La Commission est donc un organe consultatif permanent du Gouvernement fédéral dans le domaine de l’application et du développement du droit international humanitaire. Elle est ainsi chargée d’identifier et d’examiner les mesures nationales de mise en œuvre du droit international humanitaire, de faire les propositions utiles aux autorités compétentes pour prendre ces mesures et, enfin, de suivre et coordonner les mesures qui ont été prises. La CIDH se compose de représentants de tous les départements ministériels fédéraux les plus concernés par la mise en œuvre du DIH, d’experts et de représentants de la Croix-Rouge de Belgique. Compte tenu de leurs compétences en la matière, les Communautés et les Régions sont invitées à participer aux travaux.

Cela permet de réunir autour d’une même table, au sein d’une commission indépendante, des personnes de haute compétence et motivées mais avec des approches différentes. Les membres de la Commission sont d’une part les représentants de leurs départements respectifs mais ils jouissent d’autre part d’une autonomie et d’une liberté d’opinion du fait de leur participation à une commission indépendante.

La Commission tient des réunions plénières trimestrielles mais fonctionne essentiellement par le biais de groupes de travail, chargés d’examiner les questions relevant de ses compétences. La Commission a ainsi constitué en son sein les groupes de travail suivants:
˗ Le GT Diffusion, en charge de la diffusion du droit international humanitaire (art. 83 du Premier Protocole additionnel aux Conventions de Genève),
˗ Le GT Biens culturels, en charge de la protection des biens culturels en cas de conflit armé (art. 53 du Premier Protocole additionnel aux Conventions de Genève)
˗ Le GT Bureau national de renseignements, en charge de la Création d'un Bureau national de renseignements,
˗ Le GT Législation, en charge de l'adaptation de la législation fédérale aux normes de droit international humanitaire,
˗ Le GT Conférences internationales, en charge de la préparation et du suivi des décisions des Conférences internationales de la Croix-Rouge et du Croissant-Rouge,
˗ Le GT Communication, en charge de la communication au sens large de la Commission.

La Commission compte à son actif l’organisation de plusieurs manifestations, la rédaction de nombreux projets de textes légaux, de rapports internationaux ou d’avis consultatifs en matière de DIH à destination du Gouvernement belge. Mais assez parlé de la CIDH, passons à présent au sujet qui nous occupe aujourd’hui.

Les quatre Conventions de Genève de 1949 et leurs Protocoles additionnels de 1977 constituent le fondement du DIH. Ils définissent les règles essentielles du DIH visant à protéger les civils, les membres du personnel sanitaire et religieux ainsi que d’autres personnes ne participant pas (ou plus) aux hostilités. Ils établissent un cadre pertinent qui détermine ce qui est acceptable et ce qui est interdit dans une situation de conflit armé. Personne aujourd’hui ne met en doute la pertinence de ces Conventions malgré les violations à grande échelle du DIH même s’il nous faut constater que ces violations sont de plus en plus nombreuses et de plus en plus graves.

Les Conventions de Genève ont été mises à l’épreuve et la manière dont elles sont appliquées et interprétées a considérablement évolué. Comme mentionné dans l’invitation qui vous a été envoyée, le CICR et une équipe d’experts se sont lancés dans un projet majeur de mise à jour des Commentaires des Conventions. Le premier volet de cet ambitieux projet est actuellement disponible : la version actualisée du Commentaire de la Première Convention de Genève pour l'amélioration du sort des blessés et des malades dans les forces armées en campagne.

Cette publication aborde un large éventail de questions importantes, telles que la portée de l’obligation de respecter et de faire respecter le DIH, la protection minimum dont doivent bénéficier les personnes ne participant pas aux hostilités dans un conflit armé non international, le début et la fin d’un conflit armé et la protection des blessés et des malades, des infrastructures sanitaires et du personnel médical. Nous avons la ferme conviction que le droit des conflits armés continue de jouer un rôle crucial pour sauver la vie de ceux qui ne participent pas ou plus aux hostilités et qu’une interprétation cohérente du droit permet d’en accroître le respect.

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Notre conférence tentera d’examiner la version actualisée du Commentaire de la Première Convention de Genève en abordant les quatre thèmes suivants:
˗ l’obligation de « faire respecter » les Conventions de Genève (Panel I) ;
˗ la qualification des conflits tant internationaux que non-internationaux (Panel II) ;
˗ la protection des blessés et des malades dans les conflits armés internationaux et non internationaux (Panel III) ;
˗ la mise en œuvre des Conventions de Genève y compris la diffusion et les aspects pénaux (Panel IV). Je vous remercie sincèrement de votre présence et vous souhaite une excellente conférence.

II. The ICRC Commentaries Project: Objectives and Outcomes by Jean-Marie Henckaerts, Head of Commentaries Update Unit, ICRC Legal Division

1. Keynote Speaker: Jean-Marie Henckaerts, Head of Commentaries Update Unit, ICRC Legal Division

The Conference which was held on the 29th of September 2017 in Brussels aimed to discuss the update of the Commentary on the First Geneva Convention (GC I) of 12 August 1949. When this Commentary was first issued, under the general editorship of Jean Pictet, it approached the interpretation and application of the First Convention based on the experiences of the two World Wars and the negotiations of the Conventions. However, after 60 years of new wars and practice in the application and interpretation of the Geneva Conventions, the writers of the new Commentary analysed the Conventions again, in light of the post-World War II conflicts.

Unlike the first edition, this new Commentary tries to reflect differing opinions and practices within different legal cultures around the world. To do so, the writers researched a wide range of State practice, case law, scholarly publications and the International Committee of the Red Cross’s (ICRC) own archives. Hence, it is important to emphasise that this new Commentary does not only reflect the ICRC’s point of view on international humanitarian law (IHL), but also main diverging views. The contributors, members of the Editorial Committee and the peer reviewers also comprise non-ICRC staff, thus allowing an important diversity in the expertise and views to be reflected. In that sense, the updated Commentaries have incorporated outside experience in an unprecedented way, unlike the Pictet Commentaries which were written and edited almost entirely within the ICRC.

The contributors followed the interpretative method set out in Article 31 of the Vienna Convention on the Law of Treaties. Thus the interpretation is based on good faith, relying on the ordinary meaning of the terms of the Convention, in their context and in the light of its object and purpose. Importantly, the contributors also took care to analyse and take account of subsequent practice and other relevant rules of international law. Finally, while the travaux préparatoires of the Geneva Conventions were often the starting point for the previous Commentary, in the new version they have been used, but as a secondary source.

The ultimate purpose of the First Geneva Convention is the protection and care of the wounded and sick in armed conflicts. Except for the first 11 articles that are common to the four Geneva Conventions, the overall goal of protecting and caring for the wounded and sick is reflected in every article. It is noteworthy that the First Convention also deals with the important issues of the treatment and identification of the dead and the prevention of persons going missing.

In summary, four types of scenarios arose with respect to the interpretation of the First Geneva Convention in light of over 60 years of subsequent practice. First, in two cases the practice deviated from the literal text: on the obligation to appoint Protecting Powers (in practice this has been interpreted by States as being optional) and on the primacy of the red cross as the protective emblem (in practice the two main emblems – the red cross and the red crescent – are now legally equal).

Secondly, there were two provisions of the First Geneva Convention that had no real subsequent practice since their adoption, namely the articles on the conciliation and enquiry procedure. These procedures have never been used as such. Even though enquiry into violations, for example, has taken place in many

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conflicts, these procedures have never followed the rather rudimentary procedure set out the First Geneva Convention. Nevertheless, this does not mean that these procedures have fallen into desuetude and are no longer valid. They could be used by Parties to a conflict if they chose to do so.

A third scenario includes a number of topics where very limited subsequent practice was found. This was the case, for example, for the status of treatment of auxiliary medical personnel and for the retention regime applicable to medical personnel. These topics have not often been an issue in recent armed conflicts.

The fourth scenario is the most common. Namely, in many cases, a lot of new practice, new case law, additional treaties, new technologies and additional perspectives were found. An important example is common Article 3 on non-international armed conflicts (NIAC). The new Commentary now deals with a range of new topics, e.g. the beginning and end of an armed conflict, the geographical scope of application of IHL, and issues like sexual violence and non-refoulement. Other examples are more technical like the prohibitions of murder and torture. These and other prohibitions were explained in a very short manner in the original Commentary, but practice has shown that it was often necessary to go into more detail and expand on the meaning of these terms and their definitions. For example, it has proven important to understand the difference between torture, inhuman treatment and cruel and degrading treatment. The case law of international tribunals and the negotiations of the Statute of the International Criminal Court have greatly contributed to the clarification of these prohibitions.

To conclude, this new Commentary is of importance for IHL in practice. Although it mainly presents the ICRC view, this Commentary is the result of a collaborative process with external experts from all over the world and different legal cultures. It indicates ICRC interpretations, where they exist, as well as the main diverging views. Finally, the Commentary contributes to the clarification of the First Geneva Convention, but it does not provide the final word, as practice and interpretation may still evolve over time. The ultimate authority of this work, and of the other forthcoming commentaries that have been started using the same method, will depend on their quality and usefulness for practitioners like government lawyers and judges, as well as academics.

2. Discussion

A. What Has Been the Feedback from States So Far?

There has been no official feedback yet. Nevertheless, meetings with governmental officials have been held and the reception seems mainly positive. Some States appear not always to agree with every word, but the general idea of an updated Commentary and on clarification about today’s interpretation of the Geneva Conventions is accepted. The best examples of some disagreement on the interpretation of the Conventions are the interpretations of common Articles 1 and 2. For common Article 1, some States do not agree with the ICRC interpretation that States are under an obligation to ensure respect by others (this is further addressed in Panel III). With respect to common Article 2 there is disagreement regarding what type of conflict exists in case of a military intervention by a State against a non-State armed group in the territory of another, non-consenting State. The ICRC interpretation is that this creates an international armed conflict (IAC) between the two States in parallel to the non-international armed conflict (NIAC) between the first State and the armed group. But this is not accepted by all States (this is further discussed in Panel IV).

B. Are the Geneva Conventions Now Part of Customary International Law or Only Treaty Law?

They are generally seen as part of customary international law. However, because they are universally ratified this does not really matter, since the Conventions are binding in all circumstances, whether as treaty law or as customary law.

C. Where Does the New Commentary Contradict the Original Commentary?

Two examples can be given:

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1/ First, the Commentary on common Article 1 has evolved. It is now considered that common Article 1 applies both in international and in non-international armed conflicts. The original Commentary considered that it applied in international armed conflicts only;
2/ Secondly, with regard to humanitarian assistance from a third party to the conflict, the new Commentary considers that such assistance cannot be arbitrarily refused. The original Commentary considered that a party had an unfettered right to accept or refuse such assistance.

D. Are Academics the Only Ones that Have Been Consulted During the Research or Were Other Experts Involved?

A variety of other experts have been consulted. For example, concerning the treatment of the dead, forensic experts were consulted. With regard to detainees and prisoners of war, detention experts have been consulted. The same applies for topics such as data protection or medical ethics.

III. Panel I : The Obligation to ‘Ensure Respect’ for the Geneva Conventions

1. Chair: Paul Berman, EU Council Legal Service

The importance of ensuring respect, promoting compliance and implementation remains perhaps the key challenge of IHL. It is perhaps a sign of that significance that this provision received just 4 paragraphs in the original 1952 Commentary and now goes up to 74 paragraphs in the updated Commentary issued last year. It is not only important for States but is important for regional bodies as well, and the EU took the lead in 2005 in issuing guidelines for the respect of IHL.

2. Keynote Speaker: Liesbeth Lijnzaad, Ministry of Foreign Affairs of The Netherlands

I am very happy to be here and to be invited to speak to you about common Article 1. Although I think I am technically still employed by The Netherlands’ Ministry of Foreign Affairs, let me make the point that I am speaking in my personal capacity. These are personal comments.

This new Commentary is a daunting project by the ICRC. I am sure that you will agree with me that it is unbelievable that Jean-Marie Henckaerts took up a big project like this after he concluded the Customary Law Study but I do think we all should be very grateful for that. This is a project with a large scope and it is very timely to recap what is the contemporary interpretation of IHL, and the Conventions and Protocols in particular. As a member of the editorial board, I would like to also stress the importance of the academic leadership that was used by the ICRC team who are at the heart of this whole endeavour, and the many steps taken to ensure that a broad range of views and experiences are included in the process. As was mentioned by Jean-Marie Henckaerts earlier on, this project also draws on conflicts that have taken place since 1952 and includes references to major case law by the International Court of Justice, International Criminal Courts and Tribunals; references to developments in Human Rights Law; and other developments in international law such as the Draft articles on State responsibility by the International Law Commission. Obviously I believe this is going to be a very relevant reference work for those who are engaged in IHL, whether academics or practitioners, and crucial for the armed forces and the work of the military lawyers in the field.

Moving on to Article 1, as things go with first articles in any convention, this is the opening shot. This has to be setting the tone. This creates a message. Everybody knows the preamble is where the dreams and ideals go, but Article 1 is what we are talking about in this treaty. In that sense, the message is very clear: respect and ensure respect of IHL. The interpretation of that provision has developed over the years. This is truly one of the provisions where the development of the law between 1952 and 2016 is the most visible. It is a common article and the first substantive provision. The choice was made not to put it in the preamble, I suspect. If it was nothing but a dream, an ideal or a wish, it probably would not have become a first article. If you look back at the original Pictet Commentary, there is a brief but interesting quotation: “it is evident that Article 1 is not a mere stylistic clause, but is deliberately invested with imperative force, and must be obeyed to the letter”. This is the starting point of Geneva Law.

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As such, it is the reflection of the considerations of humanity on which the GCs and IHL relied. Also, the Pictet Commentary calls it an “imperative call of civilization”, and frankly when hearing the text, you could hardly disagree. It should be noted that the original Commentary about Article 1 was only 3 pages long, which is not much compared to the 74 paragraphs of the 2016 Commentary. This shows the extent to which the interpretation of Article 1 has developed over the years since 1952.

Let me turn to the three components of Article 1: there is the element of undertaking to respect the Convention; the element to ensure respect of the Convention; and the element of undertaking to do so in all circumstances. Those are the three crucial elements. With respect to the first undertaking, i.e. to respect the Convention, that is presumably the least problematic part. It is not very unusual in international law and it essentially says “pacta sunt servanda”, which is an ordinary obligation in the law of treaties, enshrined in Article 31 of the Vienna Convention on the Law of Treaties. This has been universally accepted all over the world, since the GCs have been universally accepted.

The difficult element is the second obligation, to ensure respect. The initial Commentary in 1952 focused on the scope of the obligation within the domestic legal system. There are some strange elements in the text of the original Commentary. The element of “to ensure respect” is included in this provision, which is an “imperative call of civilisation”, but the Commentary which was published three years after the Conventions were opened to ratification hesitates slightly with this phrase: “the wording may seem redundant”. It was quite clear at that stage that the engagement taken up under Article 1 extended to those over whom the High Contracting Parties had authority. Therefore, the text of the Commentary goes on to stress the importance of supervising the execution of the treaty’s obligations by domestic civilian and military authorities. On the side, the 1952 Commentary mentioned that other High Contracting Parties may and should endeavour to bring back an attitude of respect for the Convention when a State is failing to fulfil its own obligations. This would be the starting point of a reflection on not just one State’s obligations with respect to how that State implements the Convention, but also the need to properly consider how other States are contributing to ensure respect for the Convention within their own domain. The way in which the discussion has moved from individual obligations of the Contracting Party to obligations also vis-à-vis other Contracting Parties is an example of the dynamic interpretation of the GCs, and that is something that has been demonstrated over the years.

There is at least a consensus on the desirability of such a provision. The question is of course whether this obligation is just a moral norm (“being your brother’s keeper”), a “matter of policy” as the American legal advisor said in 2016, or a legal obligation. If so, what exactly is the legal obligation? It is an obligation of means, not an obligation of results. To ensure respect by others is of course always necessarily removed from the detailed methods and possibilities that a High Contracting Party has within the domain of its own legal system. A further question would then be: at what level would efforts by another High Contracting Party satisfy the obligation to ensure respect? How and when does a State know that it has done enough? That is the difficulty with this legal provision which gives a general direction but no clear indication on exactly how to “ensure respect”.

One should keep in mind that wars have fundamentally changed since the drafting of common Article 1 at the end of the 1940s. There has been a huge rise in international military missions by international organizations. Many conflicts see coalitions fighting together on one side, where there will often be coordinated approaches with different armed forces in order to be effective. These armed forces may have different legal obligations. Not every State is party to Additional Protocol I (AP I). There are also different interpretations between the members of a coalition as to how they consider the details of their legal obligations under IHL, although over the years the application of IHL has become much more detailed. Does this obligation to “ensure respect” imply a responsibility for the proper implementation of the law by others in the same operation? And if that is so, what then is the proper interpretation? To what level of detail would one have to go in terms of understanding how much or how little difference there is between one’s own interpretation and the interpretation of one’s partner? What consequences would such responsibility have should the law be violated by one’s partner? When is there a reason to

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suspect that a partner is not respecting the law? Lawyers grapple frequently with these questions. When we consider ourselves to be correctly implementing our legal obligations under IHL, we also want our partners to respect those obligations. There are many motivations for wanting our partners to respect the law. First, to avoid a headache for the ministers of Defence or Foreign Affairs. Should we be partners with States that violate IHL, there would be questions by parliamentarians and the public at large: why are we working with such a country when it is clear to everybody that they disregard the law? There is an increased need of awareness of what one’s partner is doing regarding the implementation of IHL. That also leads to the question of the predictability of a violation of the law by one’s partner. There is a threshold question regarding the knowledge of the violation and possibility of future violation by a partner. To know what to expect from them, there is a need to have knowledge of how those partners see crucial issues in IHL and to make an evaluation of that.

There is both a positive and a negative aspect to this obligation. The negative aspect of the obligation to “ensure respect” implies the obligation not to facilitate or encourage the violation of the law by one’s partners, and to abstain from certain conduct that would make it possible for them to violate the law, which of course is based on knowledge that one may have of their prior engagements, doctrine etc. There is a presumption of knowledge of how one’s partners operate, which is to a certain extent understandable in joint operations: partners are supposed to know from each other how they interpret IHL. There is a solid basis for that line of thinking in the case law of the International Court of Justice. In the Nicaragua case, the court speaks about the obligation to ensure respect as a general principle of IHL. 1 In the advisory opinion on the Wall, the Court speaks about the obligation to ensure compliance. 2 Ensuring compliance is very similar to ensuring respect. I can give some examples of this negative aspect from Dutch practice. In parliamentary questions (where one can find Government views about these obligations), Article 1 has been referred to as “a limiting factor for governmental action”, hence the notion of the negative aspect of this obligation. At one point, the Government was asked about the potential of collaboration with foreign troops and militia accused of using child soldiers. The Government responded that it would not work with parties that use child soldiers, and that this policy rested on the IHL obligation to ensure respect. In another parliamentary question about sharing intelligence leading to possible drone attacks contrary to IHL, the Government responded that this would not take place as the Netherlands have the obligation not only to respect but also to ensure respect of IHL.There is an absence of cooperation because of knowledge of what the other side is likely to do. Perhaps “negative” is not the right term but one might speak of a “passive” aspect of that obligation: refraining from doing something.

There is also an active duty - a positive obligation. It is a due diligence obligation and it implies that a State is required to do anything within its power to prevent IHL violations by its partners. This is also about foreseeable risks and anticipations. I am aware that not all agree on that reading of the obligation to “ensure respect”, because as a positive obligation it is not very concrete; it does not tell you exactly what to do. The implementation of this obligation is going to be very situational. It is about one’s general knowledge of where its partners stand and depends on the day-to-day development of military activity. A number of States have considered that this obligation should not be a legal debate but a policy debate regarding the whole question of the behaviour of others and the quality of their implementation of IHL. Not only do I think that the threshold in the International Law Commission’s Articles on State responsibility is much more restrictive, but it also does not cover some forms of collaboration, notably with non-State armed groups to whom the rules of State responsibility do not really apply. It may not be necessary to refer to those Articles and if one would want to look at those for reference, I would think that this in effect changes the threshold of the obligation. I am not sure that this would be the way to go
1 ICRC 2016 Commentary, § 161.ICJ, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), 27 June 1986, I.C.J. Rep. 1986, p. 14. Back
2 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion), 9 July 2004, I.C.J. Rep. 2004, p. 136. Back

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but this is an important debate to have. I suspect that this is a debate that we will be having in the coming years as a consequence of the Commentary and as a necessary debate anyway. It is very clear that the obligation to ensure respect in the sense of abstention (the negative aspect) is conceptually a lot simpler than the positive obligation.

On the third element of Article 1, the “in all circumstances” element: in 1952, it was thought to cover respect in peacetime as much as respect in times of armed conflict, independent of the character of the conflict. I would say that implies that the obligation is applicable also in situations of NIAC. It also stresses the fact that the analysis of the conflict under jus ad bellum is irrelevant. I am not sure that the “in all circumstances” element of Article 1 has such great weight anymore. I think that the interpretation of that aspect is more or less settled.

In conclusion, I would say that this is a relevant update of the Commentaries and I very much look forward to continuing work on the Commentary of the Third GC, and also the debate today and in the long run about Article 1, because I do think it is an important provision.

3. Commentator: Ola Engdahl, Ministry of Foreign Affairs of Sweden

I would also like to thank the organizers for this very kind invitation to address the new updated Commentary of the First Geneva Convention. I would like to extend my congratulations to Jean-Marie Henckaerts and his team for such an extensive and important contribution to the increased understanding of international humanitarian law (IHL). I welcome this opportunity to address the issue of compliance with IHL in multinational operations. In such operations, States often put their forces at the disposal of international organizations. In this context, both the obligation to respect and to ensure respect of IHL are of importance.

There is thus an obligation on each Party to the Geneva Conventions, both on the State itself and its military forces, to respect them. It follows that this obligation must include the training and education of military forces, an effective disciplinary and judicial system for the prompt and impartial investigation of offences, and the duty to report violations and breaches of IHL. The obligation to respect the Geneva Convention thus entails an obligation on States to organise their military forces and other governmental agencies in such a way as to enable this requirement to be effective. This obligation is incumbent on States both in times of peace and war. Thus, it extends to situations where States are involved in multinational operations, such as in peace operations based on a mandate from the Security Council.

In peace operations, States often put their military forces at the disposal of an international organization and generally transfer the operational control of the forces to the organization leading the operation. However, some authority is retained, such as disciplinary powers and criminal jurisdiction over the national forces. Questions of attribution and responsibility in international law may be difficult to identify in a given situation in a multinational operation, but this does not affect the obligation of States to “respect and ensure respect” under common Article 1.

This duty also entails an obligation not to encourage, aid or assist IHL violations. This may be particularly important in the context of peace operations, which often provide support to local forces. A situation where peace operation forces would expect local forces to violate IHL entails a need to take active cooperative measures with those forces in order to prevent such violations.

Perhaps the most fundamental condition for securing compliance with IHL is the proper training and education of military forces. This is a specific requirement under Article 47 of the First Geneva Convention, Article 48 of the Second Geneva Convention, Article 127 of the Third Geneva Convention and Article 144 of the Fourth Geneva Convention. These provisions establish the rule that State Parties shall disseminate the text of the Conventions as widely as possible and include the study of these Conventions in the education of their military personnel. It is, however, up to each State to decide how dissemination and training are to be undertaken. There is no international law requirement that soldiers and officers must undergo a minimum number of hours of IHL education and training. However, the

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duty to include the study of the Conventions must be read in conjunction with common Article 1 and the obligation to respect and ensure respect for these Conventions.

Based on the mandate of the operation, a set of Rules of Engagement (ROE) is developed to guide personnel in the use of force in multinational operations. Such ROE may have a profound impact on the application of force in operations. If the operation is involved in armed conflict, the ROE would reflect the rules on the use of force as stipulated in IHL. The duty to “respect and ensure respect” under Article 1 would require a State to carefully review these ROE before committing personnel to the operation to ensure that these comply with IHL requirements.

Peace operation forces, however, are seldom involved in armed conflicts, and the issue of compliance with IHL may therefore not be of primary importance. But the changing nature of these operations towards more robust ventures, and the increasingly hostile environments that such personnel are deployed in, might arguably lead to a change in the legal situation. Even where peace operation forces do not take part in an armed conflict, their pre-deployment training should include proper IHL instruction as they may be drawn into an armed conflict. Such training should also apply if they are deployed within the context of an armed conflict, even though the peace operation forces themselves are not involved in the hostilities.

The latter point is important because personnel would then not only know their own legal status in relation to the armed conflict in question, but would also be able to properly identify and report any suspected IHL violations committed in the area of operations. Furthermore, in multinational operations, it must be made perfectly clear at the outset what, and where, the proper channels are for reporting suspected IHL violations, and where the responsibility lies for dealing with such reports. This may prove a difficult enough task in national operations, but can be expected to meet serious challenges in multinational peace operations. In this respect, it could be important not only to establish channels of reporting in the operation’s chain of command but also to report suspected violations in the national chain of command. This would contribute to the fulfilment of the obligation of States to “respect and ensure respect” of IHL.

Strengthening accountability for IHL violations may, in fact, also be part of the peace operations’ mandate. During its time in the Security Council, Sweden has constantly highlighted the importance of accountability and worked for inclusion of accountability mechanisms both in resolutions and the mandate of peace operations, as a means of increasing IHL compliance and also as a means of fighting impunity.

The success of a multinational peace operation largely depends on sustaining good relations with the local population. As such, abuse and criminal acts by peace operation forces are detrimental to any operation. Such incidents too must be promptly investigated and, if proven, the perpetrator punished accordingly. In peace operations, the troop-contributing nations retain exclusive criminal jurisdiction over their military forces in relation to the host State. This requires troop-contributing nations to have an effective system in place to handle suspected offences committed in an extraterritorial context.

I would like to underline the importance of the role of the legal adviser in IHL compliance. Legal advisers should be properly involved in the strategic and tactical planning of operations, analysis of the mission, targeting process, and in the choice of means and methods of warfare in order to advise on the law during, rather than after, operations, and thus contribute to improved IHL compliance. In this respect, I would also like to address the role of the gender field adviser. Sweden has had some experience of the role of gender field adviser in relation to the application of IHL and multinational operations in the context of the International Security and Assistance Force (ISAF). The advice of a gender field adviser might be of considerable importance in the application of IHL. Applying a gender perspective in the planning of operations, analysis of the mission and the operational process as a whole may contribute to a better understanding of the situation. It may also result in additional information and knowledge about vulnerable groups in areas affected by armed conflict and thus contribute to increased

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compliance. It is important to note that the role of such an adviser on IHL implementation is likely to be more indirect, unlike the role of legal advisers. But incorporating a gender perspective may lead to a better understanding of the context in which to apply IHL standards.

The multinational element of peace operations poses specific challenges. The perception of IHL and what it requires varies between States; there are differences in pre-deployment training, implementation of IHL in national law, the exercise of jurisdiction for IHL violations, and so on. In this respect, it is important, before deployment of an operation, to properly review the ROE; to have procedures to ensure that participating forces have received proper IHL training and education; to have clear and effective procedures for reporting suspected IHL violations and national procedures allowing for effective criminal investigations and exercise of criminal jurisdiction also in an extraterritorial context; and to establish positions of legal adviser in the field as well as gender field adviser. The increasingly volatile environments in which peace operation personnel are required to work, and the trend toward enforcement capabilities of such forces, will arguably make the question of compliance with IHL even more important, not only from a legal perspective but also for the success of the operation as a whole

4. Discussion

Regarding the “negative obligation” mentioned by Liesbeth Lijnzaad in her speech, how is it related to the notion of assistance or complicity in the law of State responsibility? In the International Law Commission’s work (Article 16 of the Draft articles on State’s responsibility), there is the element of the intention to assist a violation. Yet this psychological element is absent from the Commentary of GC I. What is the rationale for the exclusion of this psychological element from the Commentary?

First of all, there is no particular reason to refer to the Draft articles on State’s responsibility if there is already a rule in the GCs. These are two different bodies of law. common Article 1 is an autonomous provision that has been standing there since 1949, long before the Articles on State responsibility were drafted. Therefore, the thresholds are different for an action that violates common Article 1 and one that corresponds to the definition of assistance or complicity in the Draft articles. Secondly, the level of intent mentioned in the Draft articles is contested. Thirdly, the results of applying common Article 1 or the Draft articles would not be so different. Consequences of aid offered to armed forces or armed groups are often foreseeable and a State cannot pretend that it did not expect its aid to serve for the violation of the GCs or IHL when such situations are obvious.

Regarding the same topic, could Article 16 of the Draft articles on State’s responsibility be a starting point to determine State responsibility before checking how much more obligation there is under common Article 1 of the GCs?

In a situation in which a State would assist another State in the violation of the GCs to the extent that it corresponds to the definition of assistance in the Draft articles, then common Article 1 would also be violated by the assisting State. That is the easy situation to judge. The real question that arises is how much a State should investigate its partners’ activities to know whether they are violating or about to violate IHL. The rules laid down by the International Law Commission could serve as a yardstick to determine the threshold of how much information should be researched on whether an ally is violating IHL. However, it is a much higher threshold. Many debates are going to take place on that very topic in the future.

Regarding the “positive obligation” to “ensure respect”, Liesbeth Lijnzaad addresses duties in relation to partners. What about violations by others, not partners? Is there an obligation to protect victims of violations by third parties?

Often forces within peace operations have a mandate to interrupt IHL violation. However, the question is how a soldier determines that he is witnessing an IHL violation. Hence the importance of training.

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Ensuring respect is not the same as ensuring protection. Common Article 1 contains an obligation to make sure that one does not contribute to a partner’s violation, but this does not imply an obligation to provide a remedy. In other words, it would be far-fetched to see a legal obligation to ensure protection of victims in common Article 1. There is an obligation to monitor and keep a good eye, but not an obligation to remedy the violation.

To state the standard of due diligence, the International Court of Justice has looked at several criteria such as the gravity of the breach, the knowledge of the breach, and the influence one can have over a State that violates the law. In multilateral operations, partner States do have interaction and influence over one another. There is no set answer as to what exactly a State must endeavour to do to prevent one of its partners from violating IHL. It is very situational and there is a whole range of options, from diplomatic influence to referring the situation to the General Assembly or the Security Council. In the 1977 Additional Protocol I (AP I), Article 89 states that States must cooperate with one another and with the United Nations to act against grave violations. A good summary of the obligation to “ensure respect” within common Article 1 could be “no cooperation without compliance”. Anyway, politically no one wants to be seen cooperating with parties committing serious violations of IHL. On that topic, the ICRC just launched a database entitled “IHL in action: respect for the law on the battlefield” to show how IHL is respected and also to change the narrative on IHL.

Regarding the exact wording of common Article 1, it concerns only the GCs, not the whole IHL. States have traditionally always considered that “ensuring respect” was directed towards their armed forces and civilian population. It was not envisaged that “ensure respect” would also apply vis-à-vis other States unless precisely stated in other articles of the GCs. Such an extension is therefore debatable and ensuring respect of the Conventions by other States it is probably a moral obligation and not a legal one. Other and more recent IHL treaties, such as conventions prohibiting landmines or cluster munitions show no such obligations to “ensure respect” by other States, which tends to prove that States do not want that kind of provision.

This is where the debate lies. To some other participants, those obligations are more legal than political. All those aspects have been considered quite extensively in the Commentary on Article 1. What seems evident is that those obligations also apply extraterritorially, hence the importance of a reporting system for IHL violations occurring on the territory of another State. The claim that States have interpreted the obligation to “ensure respect” as only concerning their own armed forces and civilian population is contradicted by Resolution 681 (1990) of the Security Council, where the Council stated that all States have a duty to ensure respect by Israel of the Fourth GC, based on common Article 1. This interpretation of common Article 1 is consistent with the interpretation of the International Court of Justice. Evidently though, more debate is still needed among scholars and practitioners on what the obligation to “ensure respect” exactly entails. Regarding the law of treaties, subsequent treaties are not necessarily relevant to the interpretation of the wording of a preceding treaty.

IV. Panel II: Conflict Classification (IAC and NIAC)

1. Chair: Jan Wouters, University of Leuven

Paragraph 237, page 86 of the new Commentary provides that: “Any unconsented-to military operations by one State in the territory of another State should be interpreted as an armed interference in the latter’s sphere of sovereignty and thus may be an international armed conflict under Article 2(1)”. 3

Based upon this, the ICRC considers that when the United States and some other countries are using air power on Syrian territory, while only against rebel forces and not against the Syrian Government, that it constitutes an IAC. The critical element here is of course the absence of consent by the Syrian Government, which is different from the situation in Iraq where the Government has consented to the
3 ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Cambridge University Press, 2016), p. 86, § 237. Back

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foreign use of military force on its own territory. Therefore, in the latter case, there is a NIAC. It is possible that the United States takes a different point of view and puts this at the forefront of the question of whether indeed violations of territorial sovereignty suffice to trigger an IAC.

Questions may arise in the discussion, for instance: what would be the position of North Atlantic Treaty Organization (NATO) countries if a certain country X were to attack an organized armed group that is active on the territory of a NATO State without that NATO State giving its consent for the use of force? Would NATO consider that an IAC or a NIAC?

2. Keynote Speaker: Dapo Akande, University of Oxford

As we all know, the Geneva Conventions begin and end with the common articles. We have already spoken about common Article 1. We are now going to turn to a discussion of common Article 2 and, to some extent as well, of common Article 3 because these articles provide the framework for classifying a conflict as either an international armed conflict or a non-international armed conflict. It is an important issue because the law that applies to the conflict will differ depending on whether the conflict is international or non-international. As can be seen from the Study of the ICRC on Customary International Humanitarian Law, 4 the differences between the law that applies to an international armed conflict and the law that applies in a non-international armed conflict is shrinking as a matter of customary international law. However, that Customary Law Study and other developments show that the gap has not been closed. There are still significant differences that arise depending on whether the conflict is categorised as international or non-international. Therefore, it is important to know from the outset how to classify any given situation.

The topic dealt with today concerns situations where a State (the foreign State) uses force on the territory of another State (the territorial State) but that force is not primarily directed at the territorial State, rather is directed at a non-State armed group based on the territorial State. There have been several examples of this type of conflict in the last decade. It is not just about the so-called ‘War on terror’ and what is going on in the Middle East in relation to ISIS. There are numerous examples that one can point to all around the world where essentially the same fact pattern is repeated: for example, Israel in Lebanon in 2006; Columbia’s attack against the FARCs in Ecuador in 2008; Uganda and Rwanda’s intervention in the Democratic Republic of Congo; and Turkey in Northern Iraq and Syria.

In some cases where this issue arises, the intervention by the State against the non-State group abroad will represent an extension of a pre-existing internal conflict between the foreign State and the non-State actor. For example, there are cases where the foreign State is pursuing the non-State group across an international border in order to deny that group refuge. However, in other cases, the scenario may be different. The non-State group is primarily based on the territorial State but has engaged in attacks against the foreign State or is otherwise representing a threat to the security of that foreign State. In all of these situations, which may be described as transnational uses of force or extraterritorial uses of force against a non-State group, the question that arises is what law applies as a matter of international humanitarian law. This of course depends on the classification.

It may be that the hostilities between the foreign State and the non-State armed group that are occurring solely within the territory of the territorial State meet the test of a non-international armed conflict. If we take the Syrian example, we could say that the hostilities between the coalition and ISIS solely in the territory of Syria meet the test for a non-international armed conflict that was established by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Tadic case. 5 It is now well established that common Article 3 applies to extraterritorial non-international armed conflicts. A non-international armed conflict does not have to be within the territory of the State.

However sometimes the hostilities that take place on the territorial State do not reach the threshold. There are cases where the hostilities between the foreign State and the non-State armed group that are taking place within the territory of the territorial State do not meet the intensity threshold. Perhaps, if
4 J.-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law (New York, Cambridge University Press, 2005). Back
5 ICTY, Appeals Chamber, Prosecutor v. Dusko Tadic, IT-94-1-A, Judgment, 15 July 1999. Back

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one aggregates the hostilities between the foreign State and the non-State armed group across different countries, it may reach the intensity threshold. If we think about Syria, the UK first struck ISIS in Syria two years ago (August 2015). As a sole act of hostilities by the UK against ISIS within Syria, that does not cross the threshold of a non-international armed conflict, but if we aggregate it with the hostilities that were already taking place between the UK and ISIS across the border in Iraq, the combination allows us to identify a non-international armed conflict.

A third possible situation is the case where it is actually not possible to reach the conclusion that there is a non-international armed conflict at all, even though there is a use of force by a State against a non-State armed group. Imagine for example a pre-emptive strike by a State against a non-State armed group that is unconnected to any previous hostilities. In that particular case, the level of intensity of the hostilities would not meet the threshold for a non-international armed conflict.

Summarising the points above, we can conclude that in cases of extraterritorial uses of force against non-State groups, we may have a situation where there is a non-international armed conflict between a State and a non-State armed group, depending on the intensity of the hostilities and whether we can aggregate hostilities across borders. However, there might be other cases where there is no non-international armed conflict between the State and the non-State armed group.

However, whether there is or there is no non-international armed conflict between the State and the non-State armed group does not exhaust the classification question. The question must be asked whether there is also an international armed conflict between the two States since, after all, one State is using force on the territory of another State. Is there at all an armed conflict between those two States, the foreign State and the territorial State? The previous version of the ICRC Commentary on common Article 2 appeared to suggest that, for there to be an international armed conflict, there needs to be the involvement of the armed forces of two States. That version referred to an international armed conflict in the following terms: “Any difference arising between two States and leading to the intervention of members of the armed forces”. 6

In the updated Commentary of 2016, the ICRC stated that its own previous interpretation is too narrow. 7 The ICRC went on to say that an international armed conflict arises whenever one State uses force against another State. 8 It then goes on to say that the use of force on the territory of another State without the consent of the latter State brings into effect an international armed conflict between the two States, even if the reason for the use of force is to engage a non-State armed group. 9

In my view, the position taken by the ICRC in 2016 is the correct position. The law that governs transnational armed conflicts between a State and a non-State group will depend in part on consent. When consent exists, the conflict will be governed by the law of non-international armed conflict, assuming that the criteria are met. When there is consent of the territorial State, the situation is really no different from the situation where the territorial State is itself fighting the non-State armed group. The consent of the territorial State means in that scenario that there are not two opposing States involved in a conflict.

Leaving aside the question of consent of the territorial State, there are at least two situations where it is quite clear that a transnational armed conflict between a State and a non-State group will be governed by the law of international armed conflict:

1/ the non-State group in question belongs to or acts on behalf of the State: it is clearly a use of force by a State against another State. E.g. In 2006, Israel intervened in Lebanon - one could ask the question whether Hezbollah was belonging to Lebanon for the purposes of IHL.
2/ the situation of occupation where the foreign State occupies the territorial State’s territory in order to act against the non-State group or, where as a result of actions taken against the non-State group, there
6 J. Pictet et al. (eds), Commentary: Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (1958), art. 2, p.20 and ICRC, supra note 3, p. 80, § 222. Back
7 ICRC, supra note 3, p. 80, § 222, in fine Back
8 Id., p. 81, § 223. Back
9 Id., p. 81, §§ 224 and 261. Back

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is occupation. In those circumstances, the action of the occupying State will be governed by the law of occupation and any other rules relating to international armed conflicts. This was the position taken by the International Court of Justice in the Armed Activities case 10 with respect to Uganda’s occupation of the territory of the Democratic Republic of the Congo (DRC). Uganda went to DRC not to fight against the armed forces of the DRC but in this process, occupied the DRC. The ICJ only applied the law of international armed conflict.

More controversy in this area centres on the other cases of lack of consent of the territorial State. The ICRC reasoning is that in the case where there is no consent of the territorial State, the use of force by the foreign State is a use of force against the territorial State. This comes from the ICJ case law interpreting the law relating to the UN Charter. The Court has made it clear that when there is a use of force on the territory of another State, it is using force against another State. One might say that to draw from the jus ad bellum in this way is to violate the separation between jus in bello and jus ad bellum. However, it is important to remember that the relevant principle is not really one of separation as such. The relevant principle is that the application of international humanitarian law is equal and independent of the positions of the parties under the jus ad bellum. In our case, it is important to note that saying that a use of force on the territory of a State without its consent is a use of force against the State says nothing about whether the use of force complies with the jus ad bellum or not. It makes no judgment at all about whether this is lawful or unlawful under the jus ad bellum. It would be lawful, for instance, when there is a Security Council resolution authorising the use of force. There would be situations where it would be unlawful and there would be situations where it would not be clear whether it is lawful or unlawful. The point is not whether it is lawful or unlawful. The point is simply that it is also a use of force against the other State.

An international armed conflict is no more than the use of armed force by one State against another State. Common Article 2 to the Geneva Conventions makes clear that the Convention applies even if one of the parties does not declare a state of war. It is also irrelevant to the state of international armed conflict whether the targeted entities are part of the governmental structure of the State or whether the purpose of the use of force is to affect the government of the State where the force is being used.

First, there is a distinction between the State and the government. The use of force in an international armed conflict involves two States. One should not equate the government with the State. The government is just one part of the State. The State also includes people and territory, in addition to a government in control of that territory.

Second, and more importantly, if the question were whether or not the State using force has affected the governmental infrastructure, it would be difficult to discern what that actually means. No uniform answer can be given to that question. Whether airports, seaports, electricity generating plants and roads are owned by the government of the State or owned by private parties will depend on the economic approach adopted by the country. None of these things is intrinsically or universally governmental. For example, in the UK the motorway from London to Manchester is the M6. However, at one point there is the ordinary M6 and the M6 Toll. If one sticks to the ordinary M6, he/she is on a motorway owned by the Government; if one goes on the M6 Toll, this is a motorway essentially owned by a private party. 11 To suggest that whether a conflict is international or not depends on whether one targets governmental infrastructure might lead to the conclusion that if one bombs the M6 or the M6 Toll, the conflict classification would be different.

Thirdly and most importantly, to attempt to distinguish between use of force directed at a non-State armed group and use of force which has as its overall purpose to influence the government of the State is to condition the application of IHL on the motivation or the mental state of the attacking State. It is to suggest that the very same act of force directed by one State against another structure would lead to different result depending solely on the intention of the intervening State. This is problematic from a
10 ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) , 19 December 2005, I.C.J. Rep. 2005, p. 168. Back
11 BBC, ‘M6 Toll is Sold to Investment Group IFM’, 15 June 2017, http://www.bbc.co.uk/news/uk-england-40285221. Unless indicated otherwise, all urls cited were last accessed on 26 February 2018. Back

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number of perspectives. It is not easy to discern what the motivation is and in any event, the choice made by IHL in 1949 was to condition the application of the law on objective factors.

If we look at the reasons why we have the distinction between the law governing international armed conflict and the law governing non-international armed conflict, the underlying reasons for the distinction essentially are based on the sovereignty concerns that States have in relation to things that happen within their own territory. States are unwilling to accept the same rules to apply within their spheres of sovereignty. In the case of a conflict with a non-State group on the territory of another State, there is no reason to have a more limited law of non-international armed conflict as the conflict is not an internal matter. The sovereignty and autonomy that are used to justify a more limited version of the law of non-international armed conflict does not apply here.

Two questions remain to be discussed: 1/ What are the consequences of having both an international armed conflict and a non-international armed conflict?
2/ Is it workable to have this overlap of laws between international and non-international armed conflicts?

3. Commentator: Lone Kjelgaard, Office of Legal Affairs, NATO

There is no doubt that the importance of classification of a potential conflict cannot be underestimated. Legal practitioners have spent a lot of time away from home trying to implement the political intent on the ground. It is even more important because, like all the records pointed out, sending States will always have jurisdiction over them. Now, I sit in a completely different chair, as part of the legal team that advises the North Atlantic Treaty Organization (NATO) on how to conduct potential military operations in response to some of the situations that were highlighted before. How do we mitigate the fact that we have twenty-nine Member States that actually have quite different views on what the law is and how we apply the law? At the Warsaw Summit, NATO Allies confirmed their legal commitments, to ensure that they remain that parallel community of freedom, peace and security. As a consequence, it is important to realize that States do not work alone through NATO, they work with partners. When talking of multinationality and multinational forces, we used the term NATO-led forces. This is fundamental to protecting and defending the indivisibility of the Allies and the common values. Also in Warsaw, Allies reinforced that this ability within the Allies and with partners has to be achieved through training, exercises, and development of NATO standards. NATO will ask its partners to adhere to its standards. As a consequence of these developments, legal ability remains of great importance to be able to conduct military operations efficiently and consistently with the legal obligations of each nation. The key point is indeed the legal obligations of each nation. This is a challenge to advising an alliance of twenty-nine sovereigns who have adhered to different legal instruments, while some have adhered to the same legal instruments but have a different understanding of what international law is and how it has to be applied. The Allies as such have no opinion on classification. It is outside NATO’s mandate to give an opinion on classification. However, the Member States certainly do have opinions on this. It would be very difficult for the Allies to reach a consensus on classification of conflicts even if it would be authorized, as it would have to be reached by consensus. When conducting combat operations (at least some nations were conducting combat operations) in Afghanistan, some Member States declared that they were ‘at war’, others said that there was an IAC in Afghanistan, or that there was a NIAC ongoing in Afghanistan. Some Member States found this irrelevant as they considered themselves to be under a UN Security Council mandate to conduct a peacekeeping operation. All these States, having different opinions on what was happening on the ground prior to December 2014, followed the same military standards. The Alliance demonstrates a high standard complying with international law. NATO puts great emphasis on the fact that it is an alliance of values, individual liberty, democracy and the rule of law. This comes from the preamble of the Washington Treaty but also from the Warsaw Summit.

The role of consensus in the NATO decision-making process is central. The deployment of troops must conform to the domestic legal requirements and the international obligations of each nation. That means that each nation will come with specific authorizations and limitations that dictate requirements to each as sending States. As a military alliance, NATO will have to facilitate awareness of what each

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contributing State can or cannot do. There are several tools to do so. One such tool has already been mentioned: that is the Rules of Engagement (ROE). NATO uses ROE to ensure political control of the use of force. NATO also uses the national cabinets to ensure that limitations placed by national legislation on one or more NATO Member States or partners are not placed upon all troop-contributing nations, but only on the ones for which it is relevant. Or, as it was put by the previous NATO legal adviser, Mister Peter Olson, NATO addresses legal questions including the relationship between IHL and international human rights law (IHRL) pragmatically rather than doctrinally, rather than acquiring the appearance of a single body of law. The Allies’ expectations are that all States participating in a NATO-led operation will lawfully act within the legal framework that applies. NATO does that through political consensus and consultation. In all military operations that NATO undertakes, whether in self-defence, at the request of the UN, because NATO Member States choose to follow the call from the Security Council and use NATO as a security force, or with the consent of the territorial State, a consensus decision is required to act. This decision is made by the twenty-nine Allies that have many political and legal advisers for their activities. The authorization to use force by NATO always comes with an objective of why NATO is doing it and what NATO is trying to achieve. Once this happens, NATO will develop a concept operation (what are we going to do) that is approved by the twenty-nine States. Subsequent to that, NATO will develop the operational plan: how are we going to do it? This is where the ROE become part of the operational plan. ROE are an operational tool but the lawyers’ role is to ensure that the requirements comply with international law. That is the term used: all NATO operations must be conducted in accordance with international law. NATO does not specify the obligations of their Member States.

NATO does not talk about the classification of a particular type of conflict situation NATO may be addressing. NATO does not talk about the legal classification of conflict but solely about the role of NATO. All these documents are approved by all the Member States allowing them to ensure that they do not undertake an operation that is in contradiction with their legal obligations.

Besides the absence of an all-encompassing framework for NATO operations, a variety of legal challenges hinder an agreement being reached by the community. One of the challenges, perhaps the most controversial, is the perceived growing influence of the role of human rights law in situations previously considered exclusively the subject of IHL aslex specialis. The possible interaction of theses bodies of law has a crucial impact on the decisions of national, regional, international courts, and may well be influencing the decisions of NATO Member States on when and in what circumstances they are prepared to deploy forces. It also impacts on the liability and responsibility of NATO as an international organization. A number of observers have stated that troop-contributing nations and international organizations such as the UN and NATO are responsible for the conduct of these forces. This issue is very sensitive for NATO. If perspectives are changing with respect to the status of IHL as a governing body of law, the classification of a situation as a NIAC, IAC, or a situation that does not amount to an armed conflict has a direct implication for the body of law to be applied and subsequently a direct impact on the military on the ground. The law, at the end of the day, is being implemented by very young soldiers on the ground. Another area where the classification of armed conflicts is of particular interest is detention. NATO considers that detention is a national responsibility. However, to overcome the differences between the legal requirements for NATO Member States and what occurs on the ground, NATO does try to develop standards of detention procedures, a very pragmatic approach to how to act in such sensitive area. Another area where it is quite difficult to offer legal advice in an international context such as NATO is hybrid activity. Adversaries have the ability to simultaneously employ conventional and non-conventional means in pursuing their objectives, with the clear aim to blur the line between war and peace. NATO Member States have different experiences with attribution for instance, and with the ability and the willingness to accumulate the effect as obtained by hybrid warfare by an adversary. NATO are looking to establish common ground amongst the Member States. It is also interesting to note that, at the Warsaw Summit, Allies claim that they will be willing to defend the alliance against hybrid attacks. They would invoke Article 5 of the Treaty.

Despite these challenges, it is also worth mentioning that the NATO Member States and partners sometimes set the bar for themselves really high and go above what might be legally required, such as applying the civilian casualty policy in Afghanistan. The NATO decision-making process is inherently political but is profoundly rooted in commitment to international law. It is essential for NATO that it is seen to be acting in accordance with its values, and the legitimacy of its operations depends on the

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appearance of a commitment to law. In parallel to the importance of acting in accordance with its values, there is NATO commitment to decision-making in a way that balances effective common action with full respect for the legal requirements of the Allies. The interpretation and application of law is first and foremost a national responsibility. The prime consequence of that is that when NATO conducted Operation Unified Protector, one of the NATO Member States did not find that it was in accordance with its national legislation to allow its troops to participate. With the understanding that its troops would not participate at all, the twenty-seven remaining States could not consent and conduct operations at that time. NATO would have not conveyed an operation at all. Therefore, as nations may have different views of the law, the NATO decision-making process ensures that the different views will not impair the ability to work together with partners in a constantly changing environment. NATO does aim to use the highest common denominator when it comes to our legal values.

4. Discussion

Regarding transnational armed conflict and its classification, if the territorial State consents to the intervention but the intervention does not reach the intensity threshold, can we dispense with the intensity criterion when the intervening State is supporting the territorial State?

The intensity threshold should not be abandoned because it is how the law is. In the case of a foreign intervention against an armed group, we will still require the intensity threshold. However, there is a complication here. The complication is this: it depends on what the territorial State itself is doing against the armed groups. E.g. Iraq is engaged in hostilities against ISIS. If another State would come in and just undertake one strike against ISIS with the consent of Iraq, the question is whether you aggregate the activities of the Iraqi Government together with the activities of the State that is coming. Is the State coming to join the same armed conflict? The intensity threshold will remain but you have the question of whether or not by providing this support to the Iraqi Government, you effectively join the conflict on the side of the Iraqi Government and, therefore, whether you aggregate the hostilities of the territorial State and the intervening State.

If the territorial State does not consent to the intervention, the main problem with the double classification position is to determine which law (IAC/NIAC) applies with respect to a specific act. For example, with respect to the targeting of a member of an armed group: if both laws apply, then the person is at the same time a civilian under the law of IAC (to be targeted only when he/she participates directly in the hostilities) and a member of an armed group under the law of NIAC. In case we consider that only the law of NIAC applies in that case, it is rather contradictory to the position that any use of force against a State is an IAC because members of armed groups are sometimes part of the State population. For example, targeting certain objects under the control of armed groups: which law applies? If it were the law of IAC, it would be difficult for the foreign State to justify the targeting of the objects. They will not be considered as military objectives as they do not contribute to the military operations of the attacked State but to those of the armed group.

The main problem is, indeed, how to determine which law applies to a specific act. At first blush it looks really complicated, but it is actually not that complicated, with one exception. IHL recognizes that you can have mixed conflicts. The ICJ talks about that in the Nicaragua case, 12 where there is a NIAC conflict going on at the same time as an IAC. This was also recognized in the context of the former Yugoslavia. It is actually not new. What is different is that the same act would be part of both conflicts. In almost all cases, the State concerned would be bound by the law of IAC because usually it is the same or is going to impose more obligations on the State than the law of NIAC. If it does not respect that law, the State would be violating its obligations vis-à-vis the territorial State. Targeting of objects is not a problem because the object will be the same whether it is civilian or not, as long as it fulfilled your own military objective definition, but targeting of persons is a problem. There, one could say that, for the purpose of NIAC, it is a member of an armed group while, for the purpose of IAC, it is a civilian. This is the one case where the law of NIAC should be the prevailing law. The law of NIAC should apply to the targetingV of persons because the essence of NIAC is hostilities between the parties to the conflict.
12 ICJ, supra note 1. Back

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It is one of the tests. Detention should be governed by the law of IAC because GC IV provides obligations for a State vis-à-vis its population and members of a group are still part of the population.

Regarding the automatic triggering of an IAC when there is a non-consented to use of force (e.g. Syrian Government has ceded control over large parts of its territory to the non-State actors), there are difficult questions about the responsibility of Syria for what occurs. It makes one think that the situation is a little bit more complex. Is it also a problem about the reciprocal nature of IHL and the ability of non-State actors to carry out obligations under the Conventions? Apparently, the law of NIAC is the most suitable body of law.

1/ The broad principle is indeed that it depends on consent but we can then have a discussion about what is consent and where there is consent. However, the Syrian situation is not a complicated one. Syria is very clear that it is not consenting, so the situation is a clear one. Syria is still fighting against the armed group in question, has still the intention to gain control of that territory. The area of complexity might be around what is consent rather than the test of consent itself.
2/ There is complexity about the reciprocal nature of IHL. It is easy to categorize. The difficulty is just this. The State that is intervening is involved in two conflicts. E.g. in Syria: there is the conflict against ISIS and there is a conflict against Syria. However, the non-State group is only involved in a NIAC. The non-State group is not a party to the IAC. In its own conflict, the reciprocal nature remains the same.

What would NATO do if one of the Member States attacked an armed group on the territory of another one?

NATO would meet in a council and discuss the question. The twenty-nine Member States would agree to a statement that the Secretary General would reference to the preamble of the Washington Treaty, and would remind the Member State in question of its legal obligations. It is the tool that NATO has to remind States to respect human rights and the rule of law.

V. Statement of Koen Geens, Belgian Minister of Justice

Monsieur le Président,
Excellences,
Mesdames, Messieurs,
Chers amis,

Sur les théâtres de guerre, dans nos professions, ou par média interposés, nous sommes, quasiment chaque jour, confrontés aux pires atrocités commises dans le cadre de conflits armés.

Vous qui êtes pour la plupart des spécialistes de ce secteur le savez bien : c’est précisément pour limiter les effets des opérations de guerre, en particulier à l'égard des populations civiles et des personnes qui ne participent pas ou plus aux combats, que le droit international humanitaire s’est développé dès la seconde moitié du 19ème siècle.

Comme l’écrivait Jean Jacques Rousseau en 1762, « si tôt quʼils posent les armes et se rendent, cessant dʼêtre ennemis ou instruments de lʼennemi, ils redeviennent simplement hommes et lʼon nʼa plus de droit sur leur vie. »

Ladies and gentlemen,

Belgium has always actively contributed to the development of IHL and has supported the efforts of the ICRC in this matter from the very beginning. Belgium was one of only 16 countries that sent a plenipotentiary to the Conference convened by the ICRC in Geneva in August 1864 and it was one of the 12 countries to support the very first Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.

Subsequently, Belgium continued to contribute actively to the work which helped to develop IHL. It was the host country for the Conference that gave rise to the Declaration of Brussels of 1874, the forerunner of the Hague Conventions of 1899 and 1907. Even today, Belgium’s commitment is clearly visible and widely recognized. The adoption of the Statute for a permanent international criminal court

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during the Diplomatic Conference in Rome in July 1998 was a truly historic moment in the process of promoting the rule of law and the fight against impunity. In June 2010, the First Review Conference of the Rome Statute of the International Criminal Court adopted an amendment to the Statute by consensus, on proposal of our then Minister of Foreign Affairs, Steven Vanackere. This was the first amendment of the Rome Statute, also known as the “Belgian Amendment”. The text extended the list of war crimes in situations of NIAC.

La Belgique est également à l’origine d’une nouvelle proposition d’amendement qui se trouve actuellement sur la table de négociation de l’Assemblée des Etats parties au Statut de Rome et qui vise à interdire l’usage de quatre types d’armes ayant en commun d’entraîner d’immenses souffrances et de tuer de manière indiscriminée.

Au-delà de ces aspects de développement du droit lui-même, la Belgique veille également à la mise en œuvre du droit international humanitaire, que ce soit par l’intermédiaire de la Commission interministérielle de Droit humanitaire ou par mon administration, par le biais de l’Autorité centrale de coopération avec les juridictions pénales internationales ou encore de la Belgian Task Force for International Criminal Justice.

L’Autorité centrale traite quotidiennement des demandes émanant de la Cour pénale internationale, en coopération notamment avec le Parquet fédéral qui dispose d’un monopole de compétence en la matière pour l’exercice de l’action publique.

La Belgian Task Force for International Criminal Justice est, quant à elle, une plate-forme de coordination, de concertation et d'échanges d'informations. Elle est composée de représentants de toutes les autorités belges qui peuvent être concernées par des questions se rapportant à la justice pénale internationale.

On le voit, les autorités belges disposent donc de plusieurs instruments efficaces pour promouvoir le respect du droit international humanitaire et sa bonne application.

Par le bref tableau que je viens de dresser, je voulais vous témoigner de toute l’importance qui est accordée par la Belgique au droit international humanitaire.

Mais ce droit est avant tout, comme son nom l’indique, un droit international. Il doit être construit par et entre les Etats et organisations internationales, comme le CICR. Il a vu le jour au tournant des années 1860 et s’est considérablement développé depuis. Pour autant, les pires atrocités continuent d’être commises aux quatre coins du monde dans le théâtre des conflits armés, parfois avec des moyens ou sous des formes nouvelles. L’évolution de la situation géopolitique n’est pas réjouissante. Les conflits armés ont, je le crains, encore de beaux jours devant eux.

Ladies and gentlemen,

IHL should not remain frozen. On the contrary, it must be able to evolve, in particular to adapt to the contours of modern and future realities.

Critics lament the powerlessness of international law and its limited protective capacity, but I fully agree with Peter Maurer, President of the ICRC, where he says that the normative legal framework has never been so strong and comprehensive, and that the community of States has never before been able to agree on so many globally accepted rules.

In times of high-tech communication and high-speed information around the clock and around the globe, we are more conscious of the world around us. Human suffering is more visible, constantly. It challenges us to act when inhumanity occurs: to react to the suffering and the violations of the law and to strive to prevent them in the first place.

The GCs and their Additional Protocols set out limits to war and offer protection.

The process of revision of the Commentaries on the GCs started by the ICRC is therefore most relevant and seems to be of the utmost importance. With the Interdepartmental Committee on humanitarian law, they took the initiative to organize this day, to circulate a first part of the work that has been done: the updated version of the Commentary on GC I.

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As you can see, I can only encourage the holding of a conference like today’s, which helps to promote Justice in the broadest sense of the term, to the benefit of the whole of humanity, and in particular of the most vulnerable people.

Mister Chairman,
Excellencies,
Ladies and Gentlemen,
Dear friends,

In conclusion, I have the pleasure to invite you to continue the work on this day, wishing you that the exchange of views this afternoon will be as successful as those held this morning.

I thank you.

VI. Panel III: The Protection of the Wounded and Sick in Both IAC and NIAC

1. Chair: Jean-Marie Henckaerts

2. Vaios Koutroulis, Free University of Brussels (ULB)

This presentation is conceived as an opportunity to comment on the Commentary. I will start with a general remark and then focus on four specific points that deserve closer attention.

Since the title of the panel also refers to NIAC, it should be noted that one of the most important aspects in terms of added value of the Commentary, especially with respect to the protection of wounded and sick, is linked to common Article 3 of the four GCs. Indeed, contrary to the previous Commentary, the updated version of the Commentary to common Article 3 is some two hundred pages long. In terms of substance, many rules are read into common Article 3. For example, when we look at the protection of wounded and sick, we find that the new Commentary interprets common Article 3 in such a way as to include obligations set out both in the Second Additional Protocol (AP II) and in customary IHL rules. Thus, one small paragraph of this Article which simply states that “The wounded and sick shall be collected and cared for” is interpreted in the Commentary as implying other obligations, namely the obligation to respect and protect medical personnel, the prohibition on attacking medical units, the loss of protection and the reasonable time limit that must be given before attacking a medical unit, or the use of distinctive emblems. All these obligations are set out explicitly in AP II and not in common Article 3. In other words, there is a significant expansion of the material scope of common Article 3, an “enrichment” in terms of the obligations that may be derived from it.

Moving on to the four specific points, I will specify from the outset that I agree with the position given by the Commentary on the first point that will be presented, I disagree with the interpretation given on the second, and finally, I found the position taken by the Commentary frustratingly vague on the last two points.

A. Scope of Application of Common Article 3: Application to a Party’s Own Armed Forces

The Commentary takes a clear view according to which common Article 3 is also applicable within a party’s own forces. The Commentary mentions two examples in this respect. 13 The first one is when a party to an armed conflict tries members of its own forces for crimes allegedly committed in the course of the conflict. The second one concerns the case of sexual abuse of a member of a party to the conflict by other members of the same forces.

There is a textual argument to be made in favour of this interpretation. Indeed, if we look at common Article 3, we do not find any reference to any requirement that the protected persons should be “in the hands of the enemy” or “in the hands of the adverse party”. However, the Commentary does not invoke this textual argument. Instead, the writers of the Commentary base their interpretation on the
13 ICRC, supranote 3., p. 191, § 547. Back

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fundamental character of common Article 3 and the fact that it reflects “elementary considerations of humanity”:

The fact that the trial is undertaken or the abuse committed by their own Party should not be a ground to deny such persons the protection of common Article 3. This is supported by the fundamental character of common Article 3 which has been recognized as a ‘minimum yardstick’ in all armed conflicts and as a reflection of ‘elementary considerations of humanity. 14

The view that common Article 3 is applicable also in the relations between members of the armed forces of the same party to an armed conflict has been confirmed by the International Criminal Court (ICC) in the Ntaganda case. In this specific case, one of the charges for which Ntaganda was accused of concerned rape and sexual slavery of child soldiers by members of the armed group to which the children belonged. The charges were confirmed by the Pre-Trial Chamber II on 9 June 2014. The Defence of the accused challenged the Court’s jurisdiction on these charges claiming that child soldiers cannot be considered as victims of war crimes committed by the armed forces to which the children belong because common Article 3 does not apply to actions between members of the same armed group. In January 2017, the Trial Chamber rejected this view and confirmed that child soldiers can be considered as victims of war crimes, citing, among other sources, the updated Commentary of 2016. The Ntaganda Defence appealed this decision, claiming that the Trial Chamber erred by relying on the updated Commentary because the interpretation proposed therein was only supported by limited references. However, in its judgment of 15 June 2017, while admitting that the references on which the updated Commentary’s interpretation are indeed limited, the Appeals Chamber found that this interpretation is correct and upheld the Trial Chamber’s decision. 15 In my view, the application of common Article 3 to actions occurring between members of the same party to an armed conflict is indeed in conformity both with the text of the article and with its object and purpose.

After presenting the point on which I agree with the Commentary’s interpretation, I will now turn to an interpretation suggested by the Commentary with which I disagree. This concerns the exclusion of the conduct of hostilities from the scope of application of common Article 3.

B. Scope of Application of Common Article 3: The Exclusion of the Conduct of Hostilities

According to the Commentary: “In the view of the ICRC, it follows from the context of the 1949 GCs in which common Article 3 is placed, however, that it was not intended to govern the conduct of hostilities. […] [C]ommon article 3 is not suited to assessing the lawfulness of the conduct of hostilities, which is governed by specific rules of humanitarian law. For NIACs, these rules can be found in AP II and customary international law”. 16

Thus, the assertion of the updated Commentary is that common Article 3 cannot be the source of the specific rules regulating the conduct of hostilities. Instead, the source for such rules should be sought in AP II and customary IHL. I would respectfully formulate two objections to this view.

Firstly, the distinction between the conduct of hostilities and the protection of victims of war is a rather formalistic one. It may of course be useful and practical, especially for teaching and dissemination purposes. However, in some cases, it will be difficult to make a clear classification of a rule as belonging to the rules relating either to the conduct of hostilities (called “Hague law”) or to the “protection of victims of war” (“Geneva law”). It may be easy to consider that torturing a detainee relates to the protection of victims of war. However, think for example of rules bearing on the protection of medical transport, the prohibition of attacks against them and the loss of their protection. Such rules can be seen as relating both to the conduct of hostilities (with respect to the targeting regime of medical transports and the immunity from attack to be granted to them) and to the protection of the victims of war (since the objective of the aforementioned prohibitions from attack is precisely to ensure the protection of the victims of war). Therefore, one cannot consider these rules as falling clearly under either the Hague law
14 Id. Back
15 ICC, Appeals Chamber, The Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06 OA5, Judgment, 15 June 2017, § 61. Back
16 ICRC, supra note 3, p. 190, §§ 542–543 [own emphasis]. Back

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or Geneva Law. For this reason, the broad character of the assertion made in the Commentary in favour of excluding the conduct of hostilities from the scope of Article 3 is, to my mind, questionable.
BR> The second objection I wanted to raise is that the interpretation suggested by the 2016 Commentary actually contradicts the view adopted by the ICRC in the customary IHL study. 17 Indeed, according to the Commentary, the source of rules regulating the conduct of hostilities in NIAC is to be found in either AP II or customary international law. 18 Interestingly, this assertion is accompanied by a footnote pointing to some specific rules in the customary IHL study applying to the conduct of hostilities. 19 Among these rules, let us look more closely into, for example, rules 46 (denial of quarter) and 47 (killing of persons hors de combat) of this study. The Commentary of rule 46 on denial of quarter asserts that this rule of IHL is customary in both IACs and NIACs. What are the sources cited as the legal basis of the customary nature of the rule in NIACs? Surprisingly enough … common Article 3. Indeed, the Commentary states that: “Conducting hostilities on the basis that no quarter will be given would violate common Article 3 of the GCs because it would result in the killing of persons hors de combat”. 20 The same goes for the rule prohibiting the killing of persons hors de combat (rule 47). Here again, the Commentary claims that this rule is customary in both IACs and NIACs and the legal basis invoked for the application of the rule in NIACs is common Article 3. Now, the ICRC cannot have it both ways. Either common Article 3 does not apply to the conduct of hostilities, and thus the customary law study was wrong in invoking the article as the legal basis for rules 46 and 47; or the customary IHL study is correct: common Article 3 does constitute the legal basis for the application of the prohibition to deny quarter and kill persons hors de combat in NIACs, which then means that the interpretation proposed by the updated Commentary is erroneous. In my view, this is the case.

C. Protection of Wounded and Sick: Consent for Humanitarian Activities in NIACs

The third point of this presentation focuses on the ambiguity of the updated Commentary on the question of the consent necessary for undertaking humanitarian activities in a NIAC. The main question here is whose consent is necessary when a humanitarian assistance mission is undertaken in NIACs, especially when the mission is to take place in a territory which is controlled by a rebel group and not by the Government. To give a concrete example, can humanitarian assistance be given to the civilians living in the Syrian territory controlled by non-State actors without the consent of the Syrian Government?

As a preliminary remark, the operational aspect of the issue should not be forgotten. In other words, for reasons relating to the efficiency and safety of the humanitarian mission, you will need to have the consent of all the parties controlling the territories that you have to cross in order to deliver the humanitarian assistance to the affected population. Without neglecting this important operational consideration, I will focus on the legal aspect of the problem.

Common Article 3 is silent on this issue. AP II however clearly states in Article 18 that relief actions shall be undertaken “subject to the consent of the High Contracting Party concerned”, a condition which has been interpreted – at least by some scholars – as imposing the need to have the consent of the Government of the State in whose territory the relief operation is being undertaken. On this issue, the updated Commentary says the following:

Despite the silence of common Article 3, it is clear from the logic underpinning international law in general [note omitted], and humanitarian law in particular, that, in principle, an impartial humanitarian organization will only be able to carry out the proposed humanitarian activities if it has consent to do so.

Consent may be manifested through a written reply to the organization […] but can also be conveyed orally. In the absence of a clearly communicated approval, an impartial humanitarian

17 J.-M. Henckaerts and L. Doswald-Beck, supra note 4. Back
18 ICRC, supra note 3, p. 190, § 543. Back
19 ICRC, supra note 3, p. 190, § 543, footnote 286. Back
20 J.-M. Henckaerts and L. Doswald-Beck, supra note 4, p. 163. Back

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organization can make sure that the Party to the conflict concerned consents at least implicitly, by acquiescence, to the proposed humanitarian activities duly notified to that Party in advance. 21

As this excerpt shows, the Commentary shies away from making an explicit reference to the High Contracting Party in whose territory the NIAC takes place. Indeed, it speaks of the consent by “the Party to the conflict concerned”, terminology which may imply that the consent of the non-State actor involved in the fighting could be considered as sufficient for the relief operation to be in conformity with international law. If this is indeed the correct interpretation of the Commentary, then the solution adopted runs counter to the text of Article 18 of AP II. However, in the footnote relating to the terms “logic underpinning international law”, it is specified that “[t]his includes a State’s sovereign right to regulate access to its territory”. 22 This reference to the territorial State’s sovereign right under international law to regulate access to its territory may be an indication that the consent of said State will be necessary for the undertaking of a relief operation. In view of this ambiguity, I am not certain whether humanitarian actors engaging in relief operations will find any meaningful guidance in the Commentary.

The fourth and final specific point of this presentation bears on the second issue on which I find the Commentary disappointingly shy. This relates to the loss of protection of medical transport and personnel when they commit acts harmful to the enemy.

D. Protection of Wounded and Sick: The Case of Acts Harmful to the Enemy

According to Article 21 of the First GC, the protection of medical transport and units ceases when they commit acts harmful to the enemy, if these acts are outside their humanitarian duties. The Commentary gives examples of the kind of acts which could be considered as being acts harmful to the enemy. 23 One important question about the loss of protection of medical units is whether this loss of protection is permanent or temporary. In other words, can the unit, after losing its protection, regain it once the act harmful to the enemy is over? Do we apply in this case a logic similar to the one of direct participation in hostilities or not? Article 21 is silent on this issue, so one would have expected the ICRC to offer some guidance on this point. Unfortunately, the Commentary chose not to give a definitive answer.

Indeed, the Commentary presents the two opposite views on this question, without expressing any preference for one or the other. On the one hand, the Commentary suggests that a permanent loss of protection “might be unjustified, given the purpose of a loss of specific protection, especially where a single ‘act harmful to the enemy’ does not produce any further harmful consequences”. 24 This seems to imply a preference for a temporary loss of protection. However on the other hand, “in the context of discouraging the further commission of ‘acts harmful to the enemy’, a definitive loss of protection may be justified.” 25 This time it is the definitive loss of protection which seems to be favoured. The conclusion of the Commentary is that “[n]either the preparatory works nor subsequent State practice in the interpretation of this provision allows for definite conclusions to be drawn on this question.” 26

I have to admit that I find this conclusion frustratingly vague. If the Commentary would have had only an academic purpose, that would have been fine. But it seems to me that, if it is to have any added value with respect to the ever increasing academic production on IHL – which includes a commentary of the GCs – the updated Commentary is expected to offer something more than a “non liquet”, particularly on questions so intimately linked to the “core business” of the ICRC such as the protection of medical transport and units. I am not suggesting of course that the Commentary should assert that some interpretations reflect the current state of international law when they do not. I am simply pointing out, and this is my final remark, that the Commentary could have followed the steps of the original Pictet
21 ICRC, supra note 3, p. 279, §§ 828, 829 [own emphases]. Back
22 Id. Back
23 Id., pp. 652–653, § 1842. Back
24 Id., pp. 658–659, §§ 1856–1857. Back
25 Id., pp. 658–659, § 1858. Back
26 Id., p. 658, § 1856. Back

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Commentary and have been somewhat bolder in giving the ICRC’s views or suggestions even on questions of IHL whose interpretation is not yet settled.

3. Commentator: Titus K. Githiora, Kenya School of Government

The Commentary is extremely detailed and can be, from a practitioner’s point of view, linked to actual practices in the training of troops and armed groups before and during armed conflicts.

Today, the reality of armed conflicts, and most of all NIACs, is the lack of respect for IHL by all sides, State actors as well as non-State actors. Armed conflicts are characterized by impunity and violation on a large scale and civilian populations are the first victims, for example when the principle of distinction is largely disrespected. Changes in the methods and means in war including the increasing incidence of terrorism, use of child soldiers, destruction of objects indispensable to the survival of the population like the destruction of cultivable lands, and sexual violence characterise contemporary armed conflicts.

Common Article 3 was the first time that conflicts of non-international character were regulated by IHL and its foundation is the principle of “human treatment”, which is a cornerstone of the protections conferred in IACs by the 1899 and 1907 Hague Regulations and the 1949 GCs. Later, AP II was included in the legal regime regulating NIACs. The principle comprises the minimum standard accorded to all human beings and non-observance by one party does not relieve the other of its obligations. The term “shall” used in the principle imposes an obligation on parties to an armed conflict that must be observed “in all circumstances”, which prevents parties from invoking military necessity as a ground for non-compliance.

The longstanding prohibition on violence to life and person is non-derogable and recognizes the protected values which are life and the human person. Common Article 3 in fact specifies prohibited acts which include:
  1. Violence to life and person - (includes acts which are detrimental to mental integrity). Though not defined, violence includes letting persons starve to death or suffer from untreated wounds or sickness. AP II includes corporal punishment in this category. Mutilation of a gangrenous limb is not in conflict with the obligation to care for the sick and wounded.
  2. Cruel treatment - includes ill treatment such as torture and outrages upon personal dignity.
  3. Torture - whose prohibition is now considered part of customary international law.
The protections are not only a moral appeal, but real obligations which should benefit from automatic application, without any distinction between victims or type of conflict. Common Article 3 and AP II imply a real duty to make sure that unnecessary effects of hostilities are avoided, and a further duty to protect civilian populations and those who are no longer taking part in hostilities.

The Commentary makes it abundantly clear that parties at war remain under the legal obligation to ensure protection of victims.

In both IAC and NIAC two core obligations are to collect and care for the wounded and sick without adverse distinction. When combined with other obligations and protections these two greatly strengthen the foundation for protection in armed conflict.

In discussing Rules 109 to 111, the International Customary Law Study 27 has established these obligations as norms of customary international law in both IAC and NIAC. This significantly helps extension of protections in NIAC which currently constitute most of the world’s armed conflicts. They are characterized by indirect effects on public health which are a greater threat to affected populations than violent injury. Such adverse effects include:
27 J.-M. Henckaerts and L. Doswald-Beck, supra note 4. Back

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  1. Interference with access to health facilities and medicine.
  2. Spread of infectious diseases.
  3. Malnutrition.
  4. Interference with preventive medicine such as vaccinations, maternal health, pediatric care.
There are many examples of the binding nature of the obligations in military manuals and codes of conduct of armed groups.

Compliance with IHL during situations of armed conflict is an ongoing challenge particularly in NIACs which are characterized by lack of political will, measures of prevention and control as well as the over-riding absence of accountability. The minimum protections given by common Article 3 to the wounded and sick are a vital contribution to principles of human treatment now well acknowledged in customary international law as well as treaty law. Common Article 3 remains universally binding, unlike AP II which is not universally ratified and whose scope of application is limited. NIAC law has fortunately continued to develop (Hague Cultural Property – Protocol II, CCW Protocol II as amended, Anti-Personnel Mines Ban Convention, Convention on Rights of the Child – Protocol II, Cluster Munitions Convention) and the regime of IHL applicable to what are now a majority of the world’s armed conflicts has grown well.

4. Discussion

Regarding the fourth and last specific point raised by Vaios Koutroulis, namely the fact that the new Commentary presents two competing interpretations of the law without favouring one over the other, it raises the question of how definitive the Commentary should be. There are areas where it would be perhaps more appropriate to just expose diverging views.

The writers should indeed not have the ambition to make this Commentary the final word, giving only one position. This appears very unrealistic on some topics that clearly present different strong points of view. However, the speaker replied that his point was not that the Commentary should have given only one position presented as the absolute truth but that it may have been preferable, from an operational point of view, after presenting all the existing interpretations, to clearly indicate the interpretation that the ICRC would suggest to be adopted on the basis of the operational experience and privileged access this organization has to the reality in the field, which the academics lack.

Nevertheless, in the updated Commentary, the ICRC has chosen to refrain from giving a clear answer when there are too many different strong points of view. This appears to have been the case with respect to the loss of protection of medical units. Another example would be paragraph 256 of the new Commentary (relating to common Article 2 of the GCs) which refers to the question of whether a cyberattack that does not cause harm can trigger an IAC. On this issue as well, the Commentary does not offer a clear answer. Indeed, some questions seem to remain open for the time being, and it is not possible to favour one interpretation over the other. In the end, the Commentary does give a lot of guidelines on many points and many gaps have been filled since 1952.

Also regarding the last specific point of Vaios Koutroulis’ presentation, in a situation where there is a loss of protection, could a medical unit or establishment be considered as a military objective?

The Commentary is relatively clear: it states that the loss of protection does not necessarily mean that the establishment may be the subject of attack. In order to be subject to attack, the conditions set out in the definition of a military objective need to be fulfilled. In most cases though, acts harmful to the enemy would fulfil both the conditions for losing protection and those necessary in order to become a lawful military target. In the event where the conditions for losing protection are met, but not those for becoming a military objective, then the opposing party can only disrupt the activity of the medical unit that has lost protection, but not attack it.

Indeed, this is one of the examples in which, even though they do not deal primarily with the conduct of hostilities, the GCs marginally regulate the way hostilities are to be conducted in a situation of armed conflict. With respect to Vaios Koutroulis’ second point (whether common Article 3 should deal with the conduct of hostilities), there was debate on that topic amongst the team that wrote the new Commentary. What really differentiates an unlawful attack under the law governing the conduct of

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hostilities and murder under common Article 3? The ICTY has sometimes considered the same act to fall under both categories.

VII. Panel IV: Implementation of the Geneva Conventions, Including Dissemination and Criminal Aspects – Developments and Novelties

1. Chair: Bakhtiyar Tuzmukhamedov, Russian Association of International Law

The two presentations that will follow are complementary since they are dealing with the implementation of IHL and the tools to achieve that goal.

2. Speaker: Eve La Haye, ICRC

Being in Belgium and talking about the grave breaches regime is like preaching to the converted. Belgium is at the forefront of IHL promotion and implementation.

In 1949, the GCs presented a new set of compliance mechanisms: the so-called grave breaches regime, a decentralised and nationally based judicial regime for war crimes (Article 49); the conciliation procedure (Article 11); the protecting powers (Articles 8 and 10); the establishment of an enquiry procedure (Article 52); and some articles on the misuse of the emblem (Articles 53 and 54). The latter mechanisms have not or rarely been used (the protective powers only five times, the conciliation procedure never and the inquiry procedure never). The cornerstone of the compliance mechanisms remains the grave breaches regime.

Article 49(1) GC I
The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention.
Article 49(2) GC I
Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.

Article 49 is articulated around two main prongs: the first prong is the obligation to enact legislation and create effective penal sanctions for serious IHL violations (paragraph 1). This is coupled with the obligation to prosecute or extradite alleged perpetrators on the basis of traditional bases of jurisdiction, such as territoriality, or passive personality, but also on the basis of universal jurisdiction (paragraph 2).

A. Enacting Legislation Which Provides Effective Penal Sanction

The first obligation is to enact legislation for effective penal sanction within national law. That obligation is addressed to all State Parties and must be fulfilled without delay. It is clearly an obligation that has to be complied with during peacetime. The first step for every State Party will be to assess whether their national legislation already contains the relevant prohibitions and the jurisdictional basis to extend jurisdiction to grave breaches committed by any perpetrator, regardless of their nationality. This task is certainly a complex one and requires a thorough study of the relevant domestic legal framework. Over the last 60 years, State Parties have chosen to implement these obligations in different ways, based on their respective legal systems as well as culture and legislative practice. There are a number of options open to the legislators:

a) The first option is to apply the existing military and criminal domestic law. In that case, the criminal code of the State party already contains penal sanctions for the specific IHL serious violations.

b) The second option that has been chosen by some State Parties aims to criminalize all serious violations of IHL at the national level by making a general reference to the relevant provisions of IHL, to international law in general, or to the laws and customs of war, and to specify a range of penalties.

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c) The third option consists of providing in domestic law for specific crimes corresponding to the grave breaches contained in the GCs.

d) The fourth and last option is to adopt a mixed approach between the 2nd and the 3rd options, combining criminalization by a general provision with the explicit and specific criminalization of certain serious crimes.

Has it worked? We noted while doing our research, that in 1965, during its 20th Conference, the Red Cross issued a statement asking States to make sure that national legislation was adopted and to report back. In 1969, the ICRC had only received information about 49 States out of 122 States party at that time. Clearly, the picture has changed a lot since then. The establishment of the ICC has had a profound impact on the approach adopted by many States. The ICC is based on a complementarity principle; it must be complementary to national jurisdictions. Consequently, many States started to look at their national legislation and decided to adopt specific provisions to ensure that they would be able to prosecute perpetrators of war crimes. A significant number of States have now implemented that obligation. We have found information on national implementing legislation for more than 125 States. This aspect of the grave breaches regime has been largely complied with.

B. The Obligation to Search for and Prosecute Alleged Offenders

i. The GC’s First Treaty to Include an Unconditional Obligation for States to First Prosecute, Second to Extradite “Primo Prosequi, Secondo Dedere”

States have the obligation to search for authors of war crimes regardless of their nationality. The obligation is to search, investigate and prosecute. It is independent of any extradition request. The obligation is clearly to first prosecute and then extradite. This obligation is unconditional and applies to all State Parties, not only those engaged in an armed conflict. This obligation does not imply an absolute duty to prosecute and punish but, if the competent authorities have found sufficient evidence, they cannot decide not to press charges and must prosecute the case.

ii. The First Inclusion of the Principle of Universal Jurisdiction

The GCs are also the first treaties to include the principle of universal jurisdiction. The obligation to prosecute must be carried out, regardless of the nationality of the alleged offenders. A literal interpretation of Article 49 would demand that States prosecute any alleged offender the world over. Indeed, if we look at the wording of that article, there is no link required with the prosecuting State. However as practice shows, States have not endowed that literal interpretation. Some States, while having extended the principle of universal jurisdiction to grave breaches, have made prosecutions conditional on the presence, temporary or permanent, of the alleged offender on their territory. In practice, State Parties cannot effectively prosecute alleged perpetrators unless they are present in their territory or in places under their jurisdiction at some point in time. Some domestic legislation has also required the approval of the attorney general before starting any proceedings on the basis of universal jurisdiction. In that regard, the Commentary stresses that these conditions should not be used by State Parties to bring political considerations into play or as a way of evading their duties to search for and prosecute offenders.

iii. Time Frame for the Performance of these Obligations

Article 49 does not contain any time frame. It is implicit in the text that State Parties should act in a manner compatible with the provision and should consequently act in a reasonable time. As soon as a State Party realises that a person who allegedly committed a grave breach is on its territory, its duty is to ensure that the person is found, and when so warranted either prosecuted or extradited.

Regarding the Convention for the Prevention of Torture, the ICJ has found in its Obligation to extradite case 28 that Senegal had missed its obligation to take action by not taking action as soon as it knew that the alleged perpetrator was present on its territory.
28 ICJ, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 20 July 2012, I.C.J. Rep. 2012, p. 422. Back

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The obligation provided for in Article 49 implies that State Parties should take action. As soon as the State knows about the likelihood of the presence on its territory of an alleged perpetrator, it must immediately put in place all the means necessary to search and prosecute. It is important to preserve evidence and initiate a preliminary enquiry.

iv. Potential Immunities from Jurisdiction or Prosecution?

A very important point that was not touched upon in the Pictet Commentary is the issue of immunity. Similarly, the Convention is silent on that issue. Official capacity does not exempt a person from criminal responsibility but may render such persons immune from proceedings before domestic courts. The new Commentary took into account the developments in that matter and shed some light on the issue of immunity. According to the ICJ in the Yerodia case, 29 officials enjoy inviolability and full immunity from criminal jurisdiction throughout the duration of their tenure in office, even if they are suspected of having committed war crimes or crimes against humanity. Once that person has left office, he or she could be prosecuted for private acts. Some of these findings have been criticized by academics and commentators.

Some ICJ judges have taken the view that the commission of grave breaches and other war crimes cannot be regarded as official acts, and therefore should not benefit from immunities when the person leaves office. Other commentators as well as international and national courts, while recognizing both functional and personal immunities for heads of State in office, have taken the view that, once the person has left office, international law has evolved to recognize an exception to functional immunities for the commission of international crimes, including grave breaches of the GCs. In other words, once the person leaves office, he or she would become liable to prosecution for grave breaches committed before or during the time in office. This approach is in line with the object and purpose of the grave breaches regime contained in the GCs.

C. Critical Assessment: Has the Grave Breaches Regime Worked?

The vast majority of States have complied with the first obligation and have enacted proper domestic implementing legislation. Nevertheless, there has been little use of the grave breaches regime, in particular on the basis of universal jurisdiction. Domestic prosecutions of war crimes or grave breaches in countries where the crimes were committed have been undertaken in particular in the last twenty years, for example in Bosnia and Herzegovina, Cambodia, Croatia or Iraq.

However, State practice shows a tendency to exercise universal jurisdiction over crimes under international law only rarely, priority often being given to States with a direct link to the crime. There seems to have been only 17 reported cases where domestic courts have exercised universal jurisdiction over alleged perpetrators of war crimes or grave breaches. One of the reasons explaining the limited use of universal jurisdiction might be that States have come across legal, practical and political obstacles, such as the issue of access to victims and witnesses, access to evidence etc.

For the system of national repression of grave breaches to function effectively, States must also be able to assist one another in connection with criminal proceedings for these offences. Furthermore, recently some States have created special units at the domestic level for the prosecution of international crimes, a strategy which reinforces the efficiency of investigations and the likelihood of success of prosecutions. Many States have also stressed the importance of adopting prosecutorial prioritization strategies in order to establish a strategic order in which war crimes and gross human rights violations are investigated and prosecuted at the domestic level.

3. Chair: Bakhtiyar Tuzmukhamedov, Russian Association of International Law

Before giving the floor to Laura de Grève and as a conclusion to Eve La Haye’s intervention, I wonder whether it would be relevant to look into the jurisprudence of the judicial review bodies, for instance: the targeted killing case decided by the Israeli Supreme Court; the Hamdam case (NIAC between Al
29 ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 14 February 2002, I.C.J. Rep. 2002, p. 3. Back

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Qaïda and the US); Canadian Court of Appeal case (this case dealt with peacekeeping operations and, as such, IHL was not the legal framework) and; UK House of Lords case (British forces were in a war like environment and thus IHL applied).

4. Commentator: Laura De Grève, Belgian Red Cross (Flanders) - Implementation of the GCs through Dissemination

Let me first say that it is an honour to participate in the same panel as Professor Tuzmukhamedov and Eve La Haye. This a great opportunity for me to speak about the dissemination of IHL, which has been at the core of my daily work for the past 5 years.

During this presentation, the following points will be discussed:
- The scope of the legal obligation to disseminate and its importance;
- The actors involved in dissemination, including the role of National IHL Committees;
- And some observations that will be shared in a personal capacity.
While the dissemination of IHL is nowadays clearly recognized as a fundamental obligation of the States party to the GCs of 1949, the means and the methods of dissemination remains an open question as highlighted in the revised Commentary on Article 47 of GC I. 30

A. Legal Obligation to Disseminate

Article 47 GC I of 1949
The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries, and, in particular, to include the study thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become known to the entire population, in particular to the armed fighting forces, the medical personnel and the chaplains.

While the importance of spreading knowledge of IHL among both the armed forces and the civilian population had been recognized before, an obligation for the States to instruct their troops and inform the civilian population about the provisions contained in the Conventions was first codified in the 1906 GC, followed by the 1907 Hague Convention (X) and the 1929 GC on the Wounded and the Sick.

The provision on dissemination was amplified and specified in Article 47 of the First GC of 1949 for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. At this point, it is important to point out that a similar provision on dissemination is included in all four GCs. 31 A provision on dissemination can also be found in the Additional Protocols of 1977 and 2005. 32 Moreover, this obligation is also recognized as customary IHL. You can find a reference in the ICRC study on customary IHL in rules 142-143. 33 The provision aims to ensure the widest possible dissemination of the First GC by the High Contracting Parties within their respective countries.

When we analyse further the scope of the obligation, we can ask ourselves the following questions: by whom, to whom, when and how?

The question of whom is responsible to disseminate IHL is actually easy to answer. Article 47 refers to the High Contracting parties, thus the States. As parties to the GCs they bear the main responsibility. However, as discussed later in this intervention, States can be assisted by other actors such as the different components of the International Red Cross and Red Crescent Movement.

To whom? According to the provisions found in the four GCs, the States are to disseminate the text of the Conventions “as widely as possible in their respective countries”. This leaves a certain margin of discretion with respect to the concrete measures to be taken, depending for example on the means
30 The 2016 Commentary to the First Geneva Convention, as published by the ICRC, constitutes the primary source of this intervention. Back
31 GC I art. 47; GC II art. 48; GC III art. 127(1) and GC IV art. 144(1). Back
32 AP I art. 83; AP II art. 19 and AP III art. 7. Back
33 J.-M. Henckaerts and L. Doswald-Beck, supra note 4. Back

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available. The provisions entail some references to specific target audiences. Article 47 of GC I particularly refers to the armed forces and the entire population. The study of IHL by the military is essential. Not only because these actors bear responsibility for its application, they are more likely to come into situations in which they benefit from the protection of IHL, for example when they are wounded. Knowledge of the provisions of IHL granting them protection may help prevent violations of the right secured to them. AP I specifies that States must ensure that legal commanders are trained to assist commanders in the application of the GCs and AP I. 34 Dissemination of IHL to the entire population can contribute to an environment conducive to the respect of IHL. Definition of the main target audiences amongst the entire population is always evolving, considering the different roles in national contexts. For example, during recent years the National Red Cross and Red Crescent Societies have been focusing on a broad range of groups: from National Societies staff and volunteers, to Governments, universities, schools, youth, medical personnel, humanitarian actors, journalists and the general public. Some of these target audiences can be considered to have a multiplication effect in the dissemination and promotion of IHL, as they may indirectly disseminate IHL and/or have an influencing role towards other stakeholders, including the population.

When? The obligation to disseminate has to be complied with both in time of peace and in time of war. Experience has shown repeatedly, that it is to some extent useless to start talking about IHL when an armed conflict has started. At that point in time, it is often far too late, although in many cases there is no alternative but to start the dissemination of IHL. To have a fair chance of being effective, implementation and dissemination must begin before the start of a conflict. Dissemination can be regarded as a preventive measure, not able to prevent conflict themselves but limit the consequences thereof.

How? Each State has a margin of discretion regarding the measures to be taken according to its capacity and means available, since Article 47 mentions “as widely as possible”.

The Commentary to GC I points out that the obligation to disseminate is not limited to the translation and distribution of the text of the Conventions. Dissemination is more complex and aims at “making the spirit of the GCs understood by all people”. As such, Article 47 obliges States to “include the study thereof in their programmes of military and, if possible, civil instruction”.

In practice, we have seen that States implement this obligation through:
- Integration of the rules into military manuals and rules of engagement;
- Development of materials, courses and movies for the training of the armed forces, often adapted to rank and respective roles and responsibilities;
- Inclusion in regular practical training and exercises, in order to ensure that compliance will become a reflex.

The integration of IHL into military instructions and programmes requires a political engagement. Moreover, such commitment is not only dependent on the “buy-in” of military commanders, but also on that of civilian authorities, in particular the executive, legislative and judicial branches of Government. Civil instruction programmes can also take the form of specific training courses for members of the media.

In general, we can state that dissemination of IHL entails the developing of both knowledge of IHL and the doctrine, education and training needed. Several activities can be developed: training courses, information sessions, bilateral dialogue, incorporation in military handbooks and rules of engagement, public communication. Several means can be used: books, flyers, role plays, social media etc.

To conclude, the obligation to disseminate is linked with the obligation in common Article 1 “to respect and ensure respect of the Conventions in all circumstances”. Several reasons underline the importance of dissemination:
- To ensure a better respect for IHL in case of an armed conflict;
- To ensure a better use and application of IHL by all actors;
- To promote humanitarian ideals with a view to limit violence and preserve peace;
34 AP I, art. 87 (2). Back

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- To raise awareness of the humanitarian consequences of armed conflict and the role of IHL.

While the Commentary of 1952 to GC I stated that knowledge is an essential condition for its effective application, it now widely recognized and mentioned in the 2016 Commentary that knowledge of the rules alone will not prevent violations. Continued development of doctrine, training and materials, as well as other preventive and repressive measures are key factors in shaping the behaviour of actors in armed conflict.

B. Actors in Dissemination

The primary responsibility to disseminate lies with the States. However, they can be assisted by other actors, such as the International Red Cross/Red Crescent Movement, since assisting in the implementation of IHL is one of its core missions. Other relevant actors, for example universities, academics and civil society, are essential to enrich the IHL debate. This intervention is focused on the role of the ICRC, National Societies and the National IHL Committees.

The ICRC has a mandate to work for the understanding and dissemination of IHL, with cooperation of the National Societies. 35 The ICRC has dissemination activities all over the world and regularly runs campaigns to heighten public awareness, for example the Health Care in Danger campaign. The subject of this Conference is also undeniably connected with the dissemination of IHL.

National Societies are auxiliaries to their public authorities in the humanitarian field; 36 their role includes assisting their authorities to disseminate and ensure respect for IHL. Because of their expertise in IHL, privileged relationship with the authorities, and their knowledge of the national context and potential needs of main target audiences, National Societies play a key role in this area. National Societies can also play a role in the National IHL Committee. As an example, the role of the Belgian Interministerial Commission on IHL is discussed.

After the ratification of the Additional Protocols of 1977 by Belgium in 1986, Belgium was quick to recognize the utility of a national committee to coordinate national measures needed for implementation. The Belgian Commission was created on 20 February 1987 by a decision of the Council of Ministers, following a recommendation made by the Belgian Red Cross. Its existence and role are officially and publicly recognized by the Royal Decree of 6 December 2000. Its acts as a permanent advisory body to the federal Government by providing recommendations of national measures for the implementation of IHL.

It is composed of representatives of federal authorities, the regions and communities and the federal prosecutors’ office. As advisory experts in IHL, the representatives of the Belgian Red Cross are invited to take part in the Commission’s work. Not acting as a permanent member nor directly involved in the decision-making process of the Commission, the Belgian Red Cross remains faithful to the principles of independence and neutrality.

One of the working groups of the Commission is dedicated to dissemination. For example, the working group has recently been working on creating an overview of existing IHL dissemination activities by different actors, with the objective of facilitating synergies and identifying target audiences for the future.

C. Concluding Observations

To conclude, some observations are shared with the participants:
- Dissemination should always be adapted to the national context and the target audiences;
- The means and methods of dissemination should be frequently revised, to respond to new developments (including technology);
- Dissemination can only be effective if a dialogue is established between actors active in dissemination, such as the National Society and the competent authorities;
35 Statutes of the International Red Cross and Red Crescent Movement, art 5. Back
36 Id., art 3. Back

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- More scientific research is needed on the most effective way to conduct dissemination of IHL and to induce behaviours compliant with the rules;
- The impact of dissemination activities is difficult to measure, which in turn makes it hard to prove its effectiveness.

5. Discussion

Concernant l’obligation de poursuivre ou d’extrader et, plus particulièrement, la portée de cette obligation dans le cadre des conflits armés non internationaux, en l’état actuel, le fondement conventionnel de cette obligation est problématique. Dès lors, est-ce que l’ensemble des décisions nationales examinées – dans le cadre de l’examen de la pratique des Etats – permet de dire qu’il existe une pratique générale de poursuivre ou d’extrader relativement aux crimes de guerre commis dans le cadre de conflits armés non internationaux ? Par ailleurs, jusqu’à quel point les travaux du CICR se réfèrent-ils à d’autres travaux effectués par d’autres institutions comme la Commission de droit international ? Qu’en est-il finalement du pouvoir discrétionnaire qu’a le procureur de ne pas poursuivre ?

This obligation applies only in IAC since it is contained in the GCs that apply to IAC. Reference is made to paragraph 1293 of the Commentary. The ICRC believes that the law does not allow extension of the obligation within the grave breaches regime to NIAC. There is no such obligation regarding war crimes committed in a NIAC. There is a right within customary law for States to extend their jurisdiction to war crimes (through universal jurisdiction), but no obligation. Some States have extended their universal jurisdiction over war crimes to war crimes committed in NIAC. For example, Belgium was the first State to do so in the 1990s. Belgium is not the only State to have done so.

Regarding the second part of the question, States obviously have no choice whether to investigate, if the alleged perpetrator of a grave breach is on their territory. The treaty is really clear: States have to start investigating. The actual obligation to investigate is there and States have no choice but to do so. The discretionary power lies within the decision to prosecute (judiciary power keeps the right to drop a case, should the elements be too shallow), but there is no choice with regard to investigation. The will of the countries was really that there would be no safety net.

Regarding the absence of immunities after cessation of office: is it part of customary law for persons still in office? In other words, if a person is still in office, do the speakers believe that the law has evolved as to be the same as the one applying when a person is no longer in office?

According to the majority of States and authors, it is not possible to say that there is no longer immunity for persons in office in front of domestic jurisdiction. On that regard, the Commentary refers to the Yerodia case. 37 The issue of immunity regarding persons in front of international courts is an entirely different one.

VIII. Closing Remarks

1. Didier Reynders, Belgian Minister of Foreign Affairs

Madame la Présidente,
Excellences,
Mesdames, Messieurs,

C’est un honneur pour moi de pouvoir vous dire quelques mots cet après-midi, alors que vos travaux touchent à leur fin. En effet, la Belgique est l’un des douze signataires de la Première Convention de Genève en 1864. Notre intérêt pour le droit international humanitaire n’a jamais fait défaut depuis. Et c’est donc tout naturellement que nous soutenons et travaillons très régulièrement avec le Comité international de la Croix-Rouge. J’aurai d’ailleurs bientôt le plaisir de présider avec le Président Maurer
37 ICJ, supra note 29. Back

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un événement de haut niveau à l'ONU. Cela se passera à New York le 20 février prochain, sur le thème de l’interaction entre la négociation humanitaire et la médiation politique. Les Conventions de Genève de 1949 sont aujourd’hui universellement ratifiées et conservent toute leur pertinence. L’ampleur du travail de mise à jour du Commentaire de 1952, réalisé de main de maître par le CICR, en est la preuve. En effet, la pratique des Etats s’est énormément développée en plus d’un demi-siècle. C’est aussi vrai pour la Belgique. A ce propos, j’ai le plaisir de vous annoncer que nos forces armées se sont dotées récemment d’un nouveau manuel de droit opérationnel. Celui-ci reprend l’ensemble des considérations de droit national et international d’application dans un contexte concret d’opérations. Le manuel a été présenté à l’Ecole royale militaire en juin dernier. Cet ouvrage contribue à la diffusion et au respect du droit en Belgique et à l’étranger. M

esdames, Messieurs,

En faisant le point sur la pratique des Etats, la nouvelle édition du Commentaire de la Première Convention permet de clarifier le droit international humanitaire. Elle met aussi en lumière les vues parfois divergentes des Etats sur certains points et donc la nécessité de discuter plus avant, entre Etats, de certaines questions. Je voudrais à cet égard rappeler le soutien de la Belgique au processus facilité conjointement par la Suisse et le CICR en vue de renforcer la mise en œuvre du droit international humanitaire. Un lieu permettant aux Etats d’échanger régulièrement leurs expériences en matière de droit international humanitaire nous semble indispensable pour dépasser ces divergences.

Le Commentaire met malheureusement aussi parfois en lumière l’absence de pratique des Etats. C’est notamment le cas concernant l’obligation de lutter contre l’impunité des crimes les plus graves, qui nous tient particulièrement à cœur. Le développement du droit pénal international, la mise en place de juridictions internationales telles que la Cour Pénale Internationale, sont des évolutions remarquables que la Belgique a soutenues et soutient avec ardeur. Mais cela n’enlève rien au fait que la poursuite des auteurs de ces crimes, qui touchent l’ensemble de la communauté internationale, relève de la responsabilité de chaque Etat. Or un tiers des Etats parties aux Conventions de Genève ne disposent pas à ce jour d’une législation adéquate permettant de poursuivre les auteurs de violations graves du droit international humanitaire. C’est la raison pour laquelle la Belgique est toujours disponible pour partager son expérience en la matière. C’est aussi afin de faciliter le travail des juridictions nationales que la Belgique a décidé de lancer avec quelques autres Etats (Pays-Bas, Sénégal, Slovénie, Argentine) une initiative en faveur de la négociation d’un nouvel instrument international en matière d’entraide judiciaire pour les poursuites nationales des crimes les plus graves.

Mesdames, Messieurs,

Les conflits actuels, qui causent d’immenses souffrances, rappellent l’urgence de respecter et faire respecter les principes d’humanité inscrits dans le droit humanitaire. Nous sommes malheureusement quotidiennement témoins de violations flagrantes de ces principes fondamentaux, en divers endroits du monde. Il est de notre devoir de rester constamment mobilisés pour rappeler ces principes, pour condamner ces violations, et surtout pour qu’elles soient effectivement punies.

Cela étant, il faut souligner que, dans leur grande majorité, les Etats respectent et appliquent le droit international humanitaire. L’expérience montre que cela est vrai aussi pour bon nombre d’acteurs non étatiques parties à des conflits armés. Cette réalité, certes moins médiatique que les atrocités qui crèvent nos écrans, est ce qui permet de ne pas désespérer. Le droit international humanitaire a toute sa pertinence, il n’est pas seulement un idéal inatteignable. Il est une puissante force morale, qui a un impact réel sur le comportement de très nombreux acteurs.

Et c’est ce qu’il faut garder à l’esprit afin de développer un dialogue indispensable entre Etats, sur la mise en œuvre du droit international humanitaire. Ce dialogue doit impérativement s’inscrire dans la dynamique du Mouvement de la Croix-Rouge, pour préserver notre humanité partagée, au-delà des logiques plus politiques d’autres enceintes.

Je vous remercie.

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2. Pierre Apraxine, ICRC Delegation to the EU, NATO and the Kingdom of Belgium

Mesdames et Messieurs,

Nous avons eu une journée particulièrement dense et intéressante. Il me revient maintenant de la clôturer.

Pour ce faire, je voudrais partager avec vous quelques éléments qui m’ont particulièrement marqué lors des débats. Et souligner certains points relatifs aux Conventions de Genève de 1949 et à leurs Commentaires. Ceux révisés aujourd’hui sont le fruit du travail de la Division juridique du CICR et de la soixantaine d’experts qui y ont été associés. Le souhait de refléter dans les nouveaux commentaires à la fois la pratique et les vues divergentes existantes a bien été souligné par Jean-Marie Henckaerts dans son intervention.

Il est remarquable de noter à quel point les textes adoptés en 1949 restent particulièrement pertinents dans les conflits du XXIème siècle. Ceci alors même que l’interprétation de certaines notions a évolué, et parfois fortement évolué. Il suffit, pour s’en convaincre, d’évoquer la notion de conflit armé non-international. De toute évidence, les rédacteurs des Conventions de Genève ont fait preuve d’une grande sagesse dans leur travail de rédaction, en permettant cette évolution d’interprétation.

Le travail qui a déjà mené à la publication des Commentaires révisés à la Première et à la Deuxième Conventions de Genève, montre à suffisance l’étendue de l’évolution de l’environnement dans lequel s’applique le Droit international humanitaire. Une évolution qui a pu, heureusement, se faire dans un cadre juridique établi, solide et reconnu. La finalité des Conventions de Genève, est d’assurer la protection des victimes des conflits armés. Les enjeux de leur bonne interprétation et l’importance de leurs Commentaires, sont ainsi évidents.

Du premier panel, qui a traité de l’« Article 1 commun» et de l’obligation de respecter et de faire respecter le DIH, on peut retenir que l’interprétation de cette disposition reste un défi important. Les orateurs ont pu rappeler qu’il s’agit d’une disposition de substance des Conventions de Genève. La partie la plus difficile de cette disposition concerne bien entendu l’obligation de faire respecter la Convention. Les orateurs ont pu débattre de la nature de cette obligation, de la délimitation de cette obligation, tant dans sa dimension négative que dans sa dimension positive, y compris dans les opérations multinationales. Il ne fait pas de doute que des débats importants se poursuivront dans l’avenir sur cette question.

Ensuite, la deuxième session a permis d’examiner la question de la qualification des conflits. Il s’agit d’une question à la fois très délicate et essentielle. Essentielle, car elle permet de déterminer les règles applicables à une situation donnée. Délicate, car même s’il s’agit de donner une interprétation juridique aux faits observés sur le terrain, l’exercice de qualifier une situation de conflit armé, de conflit armé international, de conflit armé non-international emporte des conséquences dans les relations internationales et dans l’action humanitaire. De manière très pertinente, les orateurs ont pu mettre en exergue la sensibilité de la question et les difficultés qui l’entourent. Notamment la question de l’existence ou de l’absence de consentement de l’Etat territorial en cas d’intervention d’un Etat tiers. L’application du DIH de manière indépendante par rapport au ius ad bellum a été utilement soulignée, de même que le rôle essentiel des Etats dans l’exercice même de la qualification, y compris dans le cas d’Alliance telles que l’OTAN.

Nous nous sommes ensuite penchés sur l’essence de la Première Convention de Genève qui concerne la protection des malades et des blessés. Lors de ce troisième panel, nous avons pu voir comme l’interprétation du droit peut diverger. Ce que nous devons garder à l’esprit c’est que derrière chaque divergence d’interprétation, des enjeux vitaux existent sur le terrain réel des conflits armés. La question de la place et du rôle des Commentaires et des questions qui restent sans réponse a été évoquée et provoquera, sans nul doute, encore de longues réflexions.

Finalement, la quatrième session nous a amené sur le terrain de la mise en œuvre du Droit international humanitaire, terrain que la Belgique connait bien. Les Commentaires révisés amènent des précisions utiles sur l’interprétation à réserver à l’Article 49 et à l’obligation des Etats d’adopter une législation

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sanctionnant les violations graves et à l’obligation de poursuivre les auteurs. La Belgique connaît bien ce régime de l’Article 49. Et je ne peux que rappeler que la législation belge a servi d’exemple au Service Consultatif du CICR pour promouvoir l’adoption de législations nationales assurant la répression des violations graves des Conventions de Genève. Cette session a également permis de discuter de la diffusion – essentiellement des règles de droit. Le droit ne peut en effet être respecté s’il n’est pas connu. Les Conventions de Genève contiennent des dispositions spécifiques sur ce point et les Commentaires révisés permettent de mettre en lumière les pratiques existantes et l’importance de l’intégration du droit.

Les débats de cette journée ont été riches et pertinents.

Le CICR est déterminé à poursuivre le travail de révision des Commentaires, mais également à en assurer une diffusion aussi large que possible. Les Commentaires aux Conventions 2, 3 et 4 et aux Protocoles de 1977 feront également l’objet de conférences et de journées d’étude.

Grâce au soutien de la Société belge de droit international que je remercie, les Actes de la conférence d’aujourd’hui seront publiés en ligne et en format papier. Ils seront donc largement disponibles.

Une journée de conférence telle que celle d’aujourd’hui ne s’improvise pas, et je voudrais terminer en remerciant nos orateurs et présidents de sessions, nos interprètes, ainsi que vous tous, les participants à cette conférence.

Je voudrais également exprimer mes remerciements aux autorités belges, aux Ministres Geens et Reynders, et bien entendu également à la Commission interministérielle belge de droit humanitaire. Madame Pellens vous l’a dit en introduction, c’est une des plus anciennes Commissions nationales de DIH. Mais ce que Madame Pellens ne vous a pas dit c’est que c’est également une des plus actives et une commission modèle que le CICR sollicite régulièrement afin qu’elle puisse partager son expérience avec d’autres Commissions nationales de DIH à travers le monde.

Enfin, mes remerciements vont également à notre partenaire naturel, la Croix-Rouge de Belgique. Je tiens à souligner l’excellent travail accompli au quotidien par cette Société nationale, tant en Belgique qu’à l’international, et en particulier, je voudrais mettre en exergue l’excellent travail de nos collègues en charge du DIH dans les deux sections de la Croix-Rouge de Belgique.

Sur ces remerciements, je clos la conférence et vous souhaite un bon week-end.

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