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In a statement prior to the First Committee vote on October 29, Ambassador Sherer said that the United States could have voted in favor of a study of the question of the need for or desirability of a new treaty, but it could not accept the apparent attempt to prejudge that issue.
Press Release USUN-133(76), Oct. 28, 1976, and Press Release USUN-134(76), Oct. 29, 1976. For the draft World Treaty on the Nonuse of Force in International Relations submitted by the Soviet Union, see U.N. Doc. A/31/243, annex.
Robert Rosenstock, U.S. Representative in the Sixth Committee (Legal) at the United Nations, made a statement on November 22, 1976, further commenting on the Soviet proposal on nonuse of force and urging that any further study of the item be conducted in the Legal Committee. The following are excerpts from his statement:
[S]tates expressly committed themselves to a binding treaty obligation in article 2, paragraph 4 [of the U.N. Charter], to "refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." Today that clear and direct rule is universally recognized as a peremptory norm of international law binding on all and not subject to derogation by unilateral declarations or bilateral agreements.
[W]hat is desperately needed is not further glosses on the prohibition of the threat or use of force or further instruments reiterating once again obligations none deny but: First, greater will on the part of states to honor what they know full well to be their obligations; second, examination of methods of resolving differences as to facts and an intensive, prolonged and detailed examination of the alternative to the use of force-the peaceful settlement of disputes.
Clearly differences between states exist and will continue to exist for the foreseeable future. It is a moral as well as a pragmatic imperative in today's interdependent, nuclear world that states become habituated to settling their disputes by peaceful means. There is no rational alternative. Unfortunately, while there is much learning and little doubt concerning the meaning of paragraph 4 of article 2 of the Charter, the same cannot be said of paragraph 3 of article 2. The Charter wisely listed the obligation to "settle international disputes by peaceful means" ahead of the prohibition of the threat or use of force because disputes must be settled if we are to avoid violence. The two norms are part of an inseparable whole.
We all have a solemn treaty commitment to avoid the threat or use of force in the Charter. We must not diminish the full force and effect of these Charter obligations by elaborating a partial parallel treaty structure. We would do no service to the primacy of the Charter by adopting another treaty on the same subject matter. If the provisions of both treaties were to be identical, we would debase the treatymaking process and the rule of pacta sunt servanda by suggesting that two treaties are better than one. If the words of the two treaties were not precisely the same, comma for comma, a number of difficulties would be bound to arise. Among the foremost of the difficulties would be that not all states will become parties to the second treaty and we will have two regimes sometimes parallel. sometimes divergent. A second major difficulty that would arise is that some states will seek to find interpretive loopholes stemming from the differences between the two texts-however slight those differences may be. It is even possible that some may argue that the elaboration of a new treaty implies member states are free to adopt or reject the basic prohibition of the threat or use of force.... If we are not to follow the treaty route, but decide the general area merits further examination, we would do well to ask whether the suggestions of the character contained in the U.S.S.R. proposal contain a useful basis for pursuing the elaboration of a recommendation such as a resolution or declaration. . . . [W]e are inclined to think that the approach and format contained in the Soviet text are not-even aside from the inadvisability of a treaty-a good basis for consideration of the complex of issues involved in the prohibition of the threat or use of force and the obligation to settle disputes by peaceful means.
[A]ny serious effort to deal with the problem of the threat or use of force must deal with the peaceful settlement of disputes which is . . . another of the aspects of the international security system as a whole. In order to be meaningful, however, any effort to deal with peaceful settlement must build upon the principle contained in the Friendly Relations Declaration that "recourse to, or acceptance of, a settlement procedure freely agreed to by states with regard to existing or future disputes to which they are parties shall not be regarded as incompatible with sovereign equality." What is needed is an examination of the various means of disputes settlement and a recognition that acceptance of dispute settlement procedures involving impartial third parties for future disputes is essential if we are to eliminate force as a means to settle disputes.
States derive their sovereignty from international law. They must come to recognize that the supreme manifestation of that sovereignty is to agree not merely to the principle of peaceful settlement but to meaningful and expeditious settlement procedures. This is where the concern to avoid the use of force can now be most productively directed.
A meaningful effort to discuss the norms contained in article 2 of the Charter must not suggest that these norms exist in a vacuum. Other parts of the entire system such as Chapters VI, VII and VIII
must also be taken into account if distortion and confusion are to be avoided. Emphasis on only some parts of the interlocking system risks downgrading other parts. Vague references to measures for limiting confrontation and for disarmament are more likely to distract us from serious efforts to reduce armaments and tension than contribute to positive change.
If we are to proceed with future consideration of ways and means of eliminating the use of force, all of these aspects of the problem must be carefully studied and analyzed. .
[A]ny future study of the item should be conducted in the Legal Committee.
Press Release USUN-156(76), Nov. 22, 1976. On Nov. 25, 1976, the Sixth Committee decided, by consensus, to include in its report to the General Assembly a statement noting that the legal issues involved in the nonuse item will need to be examined in current and future deliberations on the subject. U.N. Doc. A/31/360, Nov. 26, 1976.
The third session of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable to Armed Conflicts, held in Geneva April 21 - June 11, 1976, made considerable progress in the development of two draft protocols to the 1949 Geneva Conventions on the Protection of War, Victims: Protocol I-International Armed Conflicts, and Protocol II-Non-International Conflicts. Ambassador George H. Aldrich, Deputy Legal Adviser of the Department of State, headed a U.S. delegation which worked successfully to achieve the adoption of a satisfactory article on grave breaches, a new regime for the protection of medical aircraft, and provisions dealing with the missing and the dead. Other major U.S. interests included completion of a technical Annex concerning identification of medical aircraft and other medical transport, and acceptable articles on means and methods of combat in international conflicts.
As in previous sessions, the Conference organized into three main committees. The U.S. Delegation Report submitted by Ambassador Aldrich on October 15, 1976, summarized the achievements of those committees. The following are excerpts from that report:
Committee I has responsibility for provisions dealing with the scope of application of the protocols and general matters. . ., the treatment of persons in the power of parties to the conflict..., executory provisions . . ., and the preambles.
The key success of Committee I was the adoption by consensus of article 74 of Protocol I on repression of breaches [text, post, p. 696]. The negotiation of this article was the primary focus of work of Committee I during the third session, both in a series in private negotiations which developed the text that was adopted and in the working group, subworking group and Committee itself.
As adopted, article 74 stipulates that the provisions of the 1949 Geneva Conventions on breaches shall apply to breaches of Protocol I, and provides that the acts defined as grave breaches in the conventions shall be grave breaches when committed against persons entitled to prisoner of war status under the protocol, refugees, stateless persons, or sick, wounded, shipwrecked. medical, or religious persons or medical units or transports, of the adverse party protected by Protocol I. The article also includes the following list of new grave breaches, each of which must involve a willful violation of the relevant provisions of the protocol and cause death or serious injury: (a) making the civilian population the object of attack, (b) launching an indiscriminate attack knowing that it will cause disproportionate injury or damage, (c) launching an attack against works containing dangerous forces knowing that it will cause disproportionate injury or damage, (d) making nondefended localities and demilitarized zones the object of attack, (e) making a person the object of attack knowing that he is hors de combat, and (f) the perfidious use of the Red Cross sign. Because of political pressures, another paragraph includes additional grave breaches concerning (a) transfers of persons in violation of article 49 of the Fourth Convention, (b) unjustified delay in repatriation of civilians or prisoners of war, (c) practices of apartheid and other inhuman practices based on racial discrimination, and (d) cultural objects covered by special arrangements-when any of these breaches is committed willfully and in violation of the conventions or the protocol.
In view of the proposals that were made to expand the listing of new grave breaches, the article as finally adopted is more limited than could have been expected . . . . Despite this situation, it proved possible to negotiate and to keep intact a relatively acceptable list of new grave breaches. Moreover, the article as adopted includes restrictive preambular language in the paragraphs containing the lists, requiring as a minimum in every case that the grave breach be a willful violation of the protocol or the conventions. In addition, all combat offenses are limited by the extremely high mental element necessary to make out the offense, i.e., either that the objective was made "the object of attack," or, for the paragraphs concerning indiscriminate attacks and attacks on works containing dangerous forces, that the attack was made “with the knowledge" that the prohibited result would in fact occur. The requirement, for these latter paragraphs, that the result not only violate provisions of articles 46 or 49 respectively, but that, in addition, the attack be disproportionate in terms of article 50(2) (iii), should ensure that a person, before he can be charged with a violation, must have known the attack was illegal or acted wantonly. Such requirements are important if these provisions are not to be subject to abuse in order to justify criminal punishments
of persons who are guilty of war crime. The politically demanded reference to apartheid is effectively limited by the condition that apartheid is not a grave breach unless the conduct in question is in violation of the conventions or the protocol.
Committee I also adopted article 76 of Protocol I [text, post, p. 697], the first paragraph of which emphasizes that there is a duty to repress grave breaches and suppress other breaches which result from a failure to act when under a duty to do so. The second paragraph states a superior's responsibility to intervene where he knows a breach is going to be committed or is being committed. This duty is stated to attach if the superiors "had information which should have enabled them to know a subordinate was committing or was going to commit a breach." This standard requires some showing that specific information was available to the commander which would give him notice of the breach.
The most important Protocol II article adopted by Committee I at the third session was article 10, concerning the prosecution and punishment of criminal offenses relating to the internal armed conflict [text, post, p. 697]. The article was the subject of long negotiations and lengthy debate. As adopted, the article contains, on the one hand, a series of basic procedural guarantees, and, on the other, provisions concerning such subjects as postponement of the carrying out of death sentences and amnesty. Other Protocol II articles adopted at the third session by Committee I require that each party to the conflict take the necessary measures to ensure the observance of the protocol, provide for the dissemination of the protocol as widely as possible, encourage the parties to a conflict to endeavor to bring into force by means of agreement or mutual declarations all or part of the provisions of the 1949 Geneva Conventions and Protocol I, and provide that the ICRC [International Committee of the Red Cross] may offer its services to the parties to the conflict.
The most controversial remaining Protocol I articles are those concerning reprisals, extradition, an inquiry commission, reservations, and the Red Shield of David. . . .
Committee II was assigned the responsibility of considering the draft articles on the general protection of the wounded, sick and shipwrecked. . .; medical transport...; the Annex pertaining to identification and marking of medical and civil defense personnel, units and transports of Protocol I; civil defense. . ., and relief. . . . It assumed responsibility for considering a proposal by the Federal Republic of Germany (F.R.G.), the United Kingdom (U.K.) and the U.S. for a new section concerning the missing dead and the remains of deceased .
One of the highlights of the third session from the U.S. point of view was the consensus approval by Committee II of a new section I bis of Part II of Protocol I on "information on the victims of a conflict and remains of deceased [text, post, p. 698]. This section had its origins in the U.S. initiated proposal on MIA's [missing in