Mv Public Conscience Fleck

Public Conscience in International Humanitarian Law Today Michel Veuthey1

„So, let us be alert – alert in a twofold sense: Since Auschwitz we know what man is capable of. And since Hiroshima we know what is at stake.“ Viktor Frankl2 „Se battre pour une vérité en veillant à ne pas la tuer des armes mêmes dont on la défend“ Albert Camus3 „Laws would be useless unless each person had some ability to apply the law to the concrete situations in which he finds himself. This ability, this connecting link between the law and the individual act, is conscience.“ Austin Fagothey4 „The right of war, therefore, is derived from necessity and strict justice. If those who direct the conscience or councils of princes do not abide by this maxim, the consequence is dreadful: when they proceed on arbitrary principles of glory, convenience, and utility, torrents of blood must overspread the earth“. Montesquieu5

1

2 3 4 5

Doctor of Laws (University of Geneva), Adjunct Professor at the Fordham University School of Law (New York), Director of the Summer Course on International Humanitarian Law organized by the International Institute of Humanitarian Law (IIHL) in San Remo and Geneva. The author would like to thank Margaret Mottaz Shilliday, Valerie Marinoni and Esther Vigneau Kuisch for their editorial comments on the final English text of this chapter. Viktor Frankl, « The Case for a Tragic Optimism » in Man’s Search for Meaning. New York, Washington Square Press, 1985, pp. 178–179. Albert Camus, Actuelles III. Chroniques algériennes (1939–1958). Paris, Gallimard, 1958, p. 24. Austin Fagothey, Right and Reason. Ethics in Theory and Practice. Second Edition. Rockford, Illinois, Tan Books, 2000, p. 207. The Spirit of the Laws. By Charles de Secondat, Baron de Montesquieu. Translated by Thomas Nugent, revised by J. V. Prichard. Based on a public domain edition published in 1914 by G. Bell & Sons, Ltd., London. Rendered into HTML and text by Jon Roland of the Constitution Society. Book X. Of Laws in the Relation They Bear to Offensive Force, Available on line [Accessed 31 August 2003] [http://www.constitution.org/cm/sol.txt].

607

Michel Veuthey

I. Introduction The Martens Clause – first inserted in the 1899 Hague Convention II containing the Regulations on the Laws and Customs of War on Land – deserves careful reconsideration in the present era of „deregulated“ armed conflict, which affects both jus ad bellum and jus in bello in a worldwide confrontation, a planetary insurgency and counter-insurgency warfare, one country’s „global war on terror“ and another’s „war of liberation“ against foreign occupation. Who are the combatants in these conflicts and who are the innocent civilians? The fact that many of the lines that divide combatants and non-combatants are blurred in today’s hostilities complicates the implementation of international humanitarian law. The indiscriminate attacks against civilians and the denial of legal guarantees of many prisoners captured in this confrontation make the Martens Clause all the more relevant. 1.1. What is Public Conscience? Conscience can be defined as awareness (we would today use the word „consciousness“), understanding (literally „knowing together“). Conscience is the individual’s sense of what is right or wrong. It is a sense of moral awareness which could be understood as the will of God expressed in man’s judgements, an inherited intuitive sense evolved in the history of the human race, and a set of values derived from the religion, the education, the training and the experience of the individual.6 Conscience, informed by acculturation and instruction, is generally understood to give intuitively authoritative judgments on the moral quality of single actions.7 Public conscience extends beyond the individual’s moral sense. It refers to values that are shared within a community, be it a family, a tribe, a nation, a religious or professional group, a region (Africa, Latin America, North America, Western Europe, Eastern Europe, North Africa and the Near East, Oceania, SouthEast Asia, etc.) or a group of nations (industrialized or developing). Today’s writers and columnists appeal to the public conscience as writers have done for years and throughout history. Las Casas rallied his readers on behalf of

6 7

The Columbia Encyclopedia, Sixth Edition, 2001, available on line at: [http://www.bartleby.com/65/ co/conscienc.html]. „Conscience“ Encyclopædia Britannica from Encyclopædia Britannica Premium Service. [http://www.britannica.com/eb/article?eu=26341] (Accessed August 30, 2003).

608

Public Conscience in International Humanitarian Law Today

the human dignity of Amerindians,8 Cesare Beccaria9 and Voltaire against torture, Harriet Beecher Stowe against slavery,10 Victor Hugo against the death penalty, Emile Zola against bigotry in the Dreyfus Case. In the 20th century, Gandhi in South Africa and India, Martin Luther King in the United States, Mgr Romero in El Salvador, Dom Helder Camara in Brasil, Mgr Carlos Belo in East Timor all spoke out against injustices that mobilized the public conscience.11 Public conscience is related to the concepts of natural law 12 and the law of nations („jus gentium“, „droit des gens“, „Völkerrecht“) in their original meaning of common values among all civilized peoples and customary values of all human civilizations, including spiritual values, humanitarian principles, professional ethics (military, medical13). It forms a safety net of fundamental principles found in various parts of international law (laws of war, humanitarian law, human rights, international law protecting the environment, among others) linked to the survival and fundamental dignity of humankind. Even if the core of public conscience is universal, it is adjustable to cultures, situations and circumstances. Public conscience can indeed take different forms in different places and different times. It can even take the form of a negotiated compromise between justice and forgiveness. They are the principles that are widely recognized to as advancing the universal common good, not limited to individual rights. Changes in the public conscience that promote inclusion that represent a widening of rights are progressive, and those that create exclusion are regressive. The notion of individual rights may be a Western concept, but the ethic of fairness is not. As Steven Pinker writes: „The good reasons for a moral position are not pulled out of thin air: they always have

8 9

10 11 12

13

Bartolomé de las Casas. A Short Account of the Destruction of the Indies. Edited and Translated by Nigel Griffin with an Introduction by Anthony Pagden. London, Penguin, 1992, 143 p. Cesare Beccaria in his book On Crimes and Punishment published in 1764, originally published in Italian (Dei delitti e delle pene) and quickly translated into French and English, protests against the use of torture to obtain confessions. English text available online at [http://www.constitution.org/ cb/crim_pun.txt]. Harriet Beecher Stowe, Uncle Tom’s Cabin, first published in 1852. Available online at [http://www.iath.virginia.edu/utc/uncletom/uthp.html]. Arnold S. Kohen, From the Place of the Dead. The Epic Struggle of Bishop Belo of East Timor. Introduction by the Dalai Lama. New York, St. Martin’s Press, 1999, 331 p. Paolo Benvenuti, « La clausola Martens e la tradizione classica del diritto naturale nella codificazione del diritto dei conflitti armati » in Scritti degli allievi in memoria di Giuseppe Barile, Padova, CEDAM, 1995, pp. 173–224. The French text of the First 1949 Geneva Convention mentions the „conscience professionnelle“ („professional ethics“) in its Article 28 pertaining to retained medical and spiritual personnel. Medical ethics did indeed play an important role in the codification of international humanitarian law,13 the 1949 Geneva Conventions and the 1997 Ottawa Treaty.

609

Michel Veuthey

to do with what makes people better off or worse off, and are grounded in the logic that we have to treat other people the way we demand they treat us.“ 14 The best summing up of what public conscience demands could indeed be the Golden Rule: „In everything, do to others what you would have them do to you.“ It is found in Judaism (Deuteronomy) and Christianity (Matthew 7:12), as well as in the Analects of Confucius and the philosophy of ancient Greece (Plato, Aristotle) and Rome (Seneca).15 1.2. Public Conscience in Humanitarian Law: The Martens Clause Public conscience comes before treaty law: it underpins it and indeed reaches beyond it. Firstly, one could say that public conscience is the trigger mechanism of every codification of international humanitarian law. Secondly, public conscience is the driving force behind the implementation and enforcement of international humanitarian law. Thirdly, public conscience forms a sort of safety net for humanity for circumstances that written law has overlooked or not yet covered. On the battlefield of Solferino, Henry Dunant initiated both modern humanitarian action and humanitarian law by a change of his own personal conscience. He arrived there on 24 June 1859 as a businessman. Horrified by the extent of the suffering of the wounded on the battlefield, he started organising aid, with the permission of the military powers, the help of the women of Lombardy and of the Solferino parish priest, who offered his church as a makeshift hospital. Back in Geneva and still in shock, Dunant wrote his « Memory of Solferino » and, on all and every occasion, spread the message in Geneva and elsewhere in Europe, even grasping the opportunity of a congress on statistics to attract attention to the need to protect soldiers wounded on the battlefield. This change of conscience of one person, then of those who read his work and all whom he met and spoke to, will bring about a collective change of conscience of that era. This will not be an isolated phenomenon but one which will recur, each time induced by a tragedy or a collective trauma. The term „public conscience“ first appeared in international humanitarian law forty years after Solferino, in 1899 at the First International Peace Conference in The Hague, initiated by a Russian professor of international law, Frederick de

14 Steven Pinker, The Blank Slate: The Modern Denial of Human Nature, 2002. 15 See „Golden Rule“ Encyclopædia Britannica from Encyclopædia Britannica Premium Service. [http://www.britannica.com/eb/article?eu=37993] (Accessed August 30, 2003).

610

Public Conscience in International Humanitarian Law Today

Martens (Fiodr Fiodorovich Martens).16 More than a century later, public conscience remains an essential safety net for the humane treatment of prisoners of war and civilians in today’s crises. Considered by some at the time as a „diplomatic gimmick“17 intended to break a deadlock between conservative and progressive views on the treatment of resistance fighters against foreign invasion and occupation, the Martens Clause has survived as an important feature in humanitarian law. Its French original wording and English version read as follows: En attendant qu'un code plus complet des lois de la guerre puisse être édicté, les Hautes Parties Contractantes jugent opportun de constater que, dans les cas non compris dans les dispositions réglementaires adoptées par Elles, les populations et les belligérants restent sous la sauvegarde et sous l'empire des principes du droit des gens, tels qu'ils résultent des usages établis entre nations civilisées, des lois de l'humanité et des exigences de la conscience publique. Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and from the requirements of the public conscience.

1.3. Public Conscience after Martens „Conscience“ is also mentioned in the Preamble of the 1925 Geneva Protocol 18 as the „conscience of nations“: Whereas the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids materials or devices, has been justly condemned by the general opinion of the civilized world; and

16 Vladimir V. Pustogarov. Our Martens. F.F. Martens: International Lawyer and Architect of Peace. Translated by William Butler. The Hague, Kluwer Law International, 2000, 360 p. A French translation was published the year before: Vladimir Vasilievitch Poustogarov. Au service de la paix. Frédéric de Martens et les Conférences internationales de la Paix de 1899 et 1907. Biographie d’un juriste et diplomate russe, traduite par Maud Mabillard, Geneviève Piron, Lili El-Tawil et Alexandre Voltchkoff. Genève, Ecole de traduction et d’interprétation de l’Université de Genève, 1999, 315 p. 17 Antonio Cassese, «The Martens Clause: half a loaf or simply pie in the sky?», European Journal of International Law, Volume 11, Issue 1, pp. 187–216. 18 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. Geneva, 17 June 1925.

611

Michel Veuthey Whereas the prohibition of such use has been declared in Treaties to which the majority of Powers of the world are Parties; and To the end that this prohibition shall be universally accepted as a part of International Law binding alike the conscience and the practice of nations…

The four 1949 Geneva Conventions on the protection of war victims included the Martens Clause in their article on denunciation,19 in order to avoid a legal void:20 The denunciation shall have effect only in respect of the denouncing Power. It shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfill by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience.

The previous year, in 1948, the Universal Declaration of Human Rights, in its second preambular paragraph, mentioned „the conscience of mankind“: Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.

Twenty years later, the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity21 recalls this in its preamble the wording of „matter of serious concern to world public opinion“: Noting that the application to war crimes and crimes against humanity of the rules of municipal law relating to the period of limitation for ordinary crimes is a matter of serious concern to world public opinion, since it prevents the prosecution and punishment of persons responsible for those crimes…

19 Paragraph 4 of Art 63/62/142/158. 20 See the ICRC Commentary to the First 1949 Geneva Convention, p. 413: «Vague and self-evident as it undoubtedly is, such a clause is nevertheless useful, as it reaffirms the value and permanence of the lofty principles underlying the Convention. These principles exist independently of the Convention and are not limited to the field covered by it. The clause shows clearly, as we have said above, that a Power which denounced the Convention would nevertheless remain bound by the principles contained in it insofar as they are the expression of inalienable and universal rules of customary law.» 21 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 26 November 1968.

612

Public Conscience in International Humanitarian Law Today

The 1976 UN Convention on Certain Conventional Weapons (CCW)22 takes over in its preamble the „Martens Clause“: Confirming their determination that in cases not covered by this Convention and its annexed Protocols or by other international agreements, the civilian population and the combatants shall at all times remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.

The two 1977 Additional Protocols to the 1949 Geneva Conventions also refer to the „Martens Clause“ in different settings and wordings: •

Additional Protocol I, relating to the protection of victims of international armed conflicts, in paragraph 2 of Article 1 („General principles and scope of application“): In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.

•

Additional Protocol II, relating to the protection of victims of international armed conflicts, in the last paragraph of its Preamble: Recalling that, in cases not covered by the law in force, the human person remain under the protection of the principles of humanity and the dictates of public conscience.

Twenty years later, the Preamble of the 1997 Ottawa Treaty banning antipersonnel landmines23 also mentions the role of public conscience: Stressing the role of public conscience in furthering the principles of humanity as evidenced by the call for a total ban of anti-personnel mines and recognizing the efforts to that end undertaken by the International Red Cross and Red Crescent Movement, the International Campaign to Ban Landmines and numerous other non-governmental organizations around the world.

22 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects. Geneva, 10 October 1980. 23 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 18 September 1997.

613

Michel Veuthey

The 1998 Preamble of the Rome Statute of the International Criminal Court,24 as the Universal Declaration of Human Rights forty years before, refers to „the conscience of humanity“: Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity.

II. The Role of Public Conscience in International Humanitarian Law (IHL) 2.1. The Law Before the Law: Public Conscience as the Origin of IHL Humanitarian Customs Before IHL: Restraining Violence in order to Guarantee Survival Public conscience in the humanitarian context could be understood as the universal and immemorial written and unwritten rules that are meant to restrain the use of violence – even in time of war – and limit the suffering of the wounded, shipwrecked or imprisoned enemy combatant as well as the enemy civilians so as not to jeopardize a community’s survival.25 In ancient India26 in the Mahabharata27 and the Laws of Manu,28 in ancient Greece, China,29 Japan,30 in African customs and those of peoples all over the

24 Rome Statute of the International Criminal Court, 17 July 1998 [as corrected by the procès-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002]. 25 Henri Meyrowitz, «Réflexions sur le fondement du droit de la guerre» in C. SWINARSKI (Ed.) Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en l'honneur de Jean Pictet, Geneva, ICRC, 1984, 1143 p., pp. 419–431. 26 Nagendra SINGH, «Armed conflicts and humanitarian laws of ancient India» in C. SWINARSKI (Ed.) Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en l'honneur de Jean Pictet, Geneva, ICRC, 1984, 1143 p., pp. 531–536. 27 See the Bhagavad Gita, 6.32, translated by Stephen Mitchell, New York, Harmony Books, 2000, p. 94, as one equivalent of the „Golden Rule“: „When he sees all beings as equal in suffering or in joy because they are like himself, the man has grown perfect in yoga.“ 28 English translation by Georg Bühler available online: [http://www.sacred-texts.com/hin/manu.htm] See especially Chapter Seven [http://www.sacred-texts.com/hin/manu/manu07.htm]: „90. When he [the King] fights with his foes in battle, let him not strike with weapons concealed (in wood), nor with (such as are) barbed, poisoned, or the points of which are blazing with fire.

614

Public Conscience in International Humanitarian Law Today

world, prohibitions exist against excesses that would endanger the group’s survival. Throughout history, all civilizations have developed rules to regulate internal conflicts within the group,31 tribe, nation and religion to ensure its survival. As cooperation is the best long-run survival strategy in most circumstances, conflict resolution is universal in human societies. Indigenous people of all continents have adopted mechanisms (rituals, ethical codes) to avoid excesses that could turn conflicts into anarchy. Examples of this are found among the Melanesians (indigenous peoples from Oceania),32 Inuit33 and Nilotic peoples;34 in the religions of Buddhism,35 Hinduism,36 Taoism,37 Confucianism,38 and Bushido39 in Asia; Juda-

29

30

31

32 33 34 35 36

91. Let him not strike one who (in flight) has climbed on an eminence, nor a eunuch, nor one who joins the palms of his hands (in supplication), nor one who (flees) with flying hair, nor one who sits down, nor one who says 'I am thine;' 92. Nor one who sleeps, nor one who has lost his coat of mail, nor one who is naked, nor one who is disarmed, nor one who looks on without taking part in the fight, nor one who is fighting with another (foe); 93. Nor one whose weapons are broken, nor one afflicted (with sorrow), nor one who has been grievously wounded, nor one who is in fear, nor one who has turned to flight; (but in all these cases let him) remember the duty (of honourable warriors). 94. But the (Kshatriya) who is slain in battle, while he turns back in fear, takes upon himself all the sin of his master, whatever (it may be)“. See the Chinese character „Jên“ or „benevolence, the first of the four virtues considered by Confucius to be innate in humans, can also be translated as „kindness“ or „humanity“. The ideas are inseparable. It is our humanity that prompts us to do good unto others, as we would have done unto ourselves.“ Barbara Aria, in her book with Russell Eng Gon, The Spirit of the Chinese Character. Gifts from the Heart. San Francisco, Chronicle Books, 1992, p. 47, adds: „This ideogram combines the radical for „human being“ (also pronounced „jên“), showing the legs and trunk of a person, with the pair of horizontal strokes that denotes „two“. Sumio Adachi, „Traditional Asian Approaches: the Japanese View“, in UNESCO, International Dimensions of Humanitarian Law, Paris, 1988, pp. 13–19. 9 Australian Yearbook of International Law. 1985, pp. 158–167. Platon, La République. Introduction, traduction et notes de R. BACCON, Paris, 1966, pp. 224–227. See also André Bernand, Guerre et violence dans la Grèce antique, Paris, Hachette, 1999, 431 p. Pierre Ducrey, Le traitement des prisonniers de guerre dans la Grèce antique, Paris 1978, and Jacqueline de Romilly, La Grèce antique contre la violence, Paris, Ed. de Fallois, 2000, 188 p. F. Keitsch, Formen der Kriegführung in Melanesien, Bamberg, 1967, p. 380. M. Davie, La guerre dans les sociétés primitives. Son rôle et son évolution. Traduit de l’anglais par M. Guérin. Paris, Payot, 1931, 440 p. E. E. Evans-Pritchard, The Nuer. A Description of the Modes of Livelihood and Political Institutions of a Nilotic People, London, Oxford University Press, 1940, 271 p. Buddhism contains two fundamental principles, maitri (friendliness, benevolence) and karuna (mercy, compassion) closely related to the principle of humanity. For Hinduism, numerous rules on the kind treatment to be granted to the vanquished are found in the Mahabharata (XII, 3487, 3488, 3489, 3782, 8235) which also prescribes loyalty in combat

615

Michel Veuthey

ism,40 Christianity41 and Islam42 in the Middle East; in customary humanitarian law in Africa;43 and in mutual restrictions imposed by chivalry44 and military honor45 in Europe. According to Erich Fromm, there are so-called „Life-Affirmative Societies“ among primitive tribes, in which the main emphasis of ideals, customs and institutions is the preservation and growth of life in all its forms. In these societies we find a minimum of hostility, violence, or cruelty among people, no harsh punishment, hardly any crime, and the institution of war is absent or plays an exceedingly small role.46

37 38 39

40 41

42

43

44 45

46

(XII, 3541 and 42, 3544 to 51, 57 to 60, 64, 3580, 3659, 3675, 3677). See also the famous Laws of Manu, VII, 90 to 93 (The Laws of Manu, Oxford 1886). On Taoism, see Lao Tse: Tao Te Ching, A new translation by Gia-Fu and Jane ENGLISH (New York 1972) and in particular No. 68 („a good winner is not vengeful“) and No. 38. See Barbara Aria and Russell Eng Gon, The Spirit of the Chinese Character, San Francisco: Chronicle Books, p. 47. On Bushido, see Sumio ADACHI, „ Traditional Asian approaches: A Japanese view“ in Australian Yearbook of International Law, Vol. 9, 1985, pp. 158–167, and, by the same author, „The Asian Concept“, in: International Dimensions of Humanitarian Law, Paris, UNESCO, 1986, pp. 13–19, which also considers Buddhism. On Judaism, see Erich Fromm's You Shall Be As Gods (New York: Holt, Rinehart and Winston, 1966). On Christianity, Max Huber The Good Samaritan: Reflections on the Gospel and Work of the Red Cross, London, Gollancz, 1945, 77 p. See also Joseph Joblin, L'Eglise et la Guerre. Conscience, violence, pouvoir, Paris 1988, and in particular, for ius in bello, pages 193 onwards; Alfred Vanderpol, La doctrine scolastique du droit de la guerre, Paris 1919. On Islam, see among others Hamed Sultan, „The Islamic Concept“, in International Dimensions of Humanitarian Law“, Geneva/Paris, UNESCO/Nijhoff, 1988, pp. 29–39, Marcel Boisard, L'Humanisme de l'Islam, Paris 1979; Jean-Paul Charney, L'Islam et la guerre. De la guerre juste à la révolution sainte, Paris 1986. See also the article published in the International review of the Red Cross by M.K. Ereksoussi, „The Koran and the Humanitarian Conventions“ (May 1962); Ameur Zemmali, Combattants et prisonniers de guerre en droit islamique et en droit international humanitaire, Paris, Pedone, 1997, 519 p. On African customs, see Emmanuel Bello, African Customary Humanitarian Law, Geneva: ICRC, 1980; the articles by Yolande Diallo published in February and August 1976 in the International Review of the Red Cross under the title „Humanitarian Law and African Traditional Law“. G.I.A.D. Draper, „The interaction of Christianity and Chivalry in the historical development of the law of war“ IRRC, Nov. – Dec. 1979, pp. 283–300. See Geoffrey Best, Humanity in Warfare. The Modern History of International Law of Armed Conflicts, London, Weidenfels and Nicolson, 1980, 400 p. Michael Ignatieff, The Warrior’s Honour. Ethnic War and the Modern Conscience. New York: Viking, 1998, 207 p. compares this warrior’s honor with today’s ethnic conflicts. Erich Fromm, The Anatomy of Human Destructiveness, New York: Holt, Rinehart and Winston, 1973, p. 168.

616

Public Conscience in International Humanitarian Law Today

Most of those restraints in the use of violence and duties of solidarity were limited to the members of the group: i.e. members of the tribe, Ancient Greek cities among themselves, etc. International humanitarian law took over many of those restraints (one example is the prohibition of perfidy or of the use of poison). Thus, it established bridges between these „islands of humanity“. The universal ratification of the 1949 Geneva Convention and the declaration in Nuremberg of the Hague Law as customary certainly are considerable developments for international humanitarian law, which are more interesting for international lawyers than for others (??). Anchoring the „thin red line“ of positive international humanitarian law in the public conscience of each region could be a contribution to the effectiveness of the Geneva and Hague Law. Public Conscience as the Prime Mover of Codification of International Humanitarian Law Public conscience, or perhaps it would be more accurate to say „public revulsion“, has been the driving force behind every codification of international humanitarian law over the past 150 years. Rather than the proactive inscription of lofty ideals, the major humanitarian and human rights international instruments in use today are mainly the products of the painful lessons learned from the collective tragedies and humanitarian disasters of modern history. Indeed, the list of humanitarian catastrophes of the late 19th to late 20th centuries mirrors the timeline for the adoption of these instruments: – The plight of the soldiers wounded on the battlefield of Solferino in 1859 as told by Henry Dunant in his book A Memory of Solferino brought European Governments to Geneva in 1864 to adopt the First Geneva Convention.47 – The shock caused by the Japanese defeat of the Russian fleet at the battle of Tsushima in 1905 highlighted the need to extend the protection of the Geneva Convention to the shipwrecked. – The unsatisfactory protection of the prisoners of war during World War I led to the adoption of a new Geneva Convention in 1929. – The suffering of millions of civilians occupied and interned during the Second World War in Europe and in Asia provoked a complete update of the Geneva Conventions and a new Convention on civilians.

47 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, of 22 August 1864. Available online at: [http://www.yale.edu/lawweb/avalon/lawofwar/geneva04.htm].

617

Michel Veuthey

– The struggles for self-determination and the much-publicized attacks against the civilian population during the Vietnam War created the need for a reaffirmation and further development of international humanitarian law. The result was two 1977 Additional Protocols to the 1949 Geneva Conventions. – Extensive defoliation programs and other spectacular damages to the environment during the Vietnam War were the motivation forces behind the 19741977 Geneva Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law, as well as behind the 1976 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD Convention). – The use of particularly indiscriminate conventional weapons in Vietnam and the public exposure of their humanitarian consequences created the pressure necessary for the adoption of the Convention on Certain Conventional Weapons (CCW) in 1980.48 From the 1980s, awareness raising and international campaigning have taken on larger roles in policymaking and extending international humanitarian and human rights law. Spurred by the rapid growth and expansion of issue-oriented nongovernmental organizations (NGOs) and the vast expansion of the accessibility of information via the Internet and 24-hour TV and radio news channels, public conscience has been awakened to an ever-widening set of human rights and humanitarian issues: – Increased public awareness of human rights abuses around the world, especially in Latin America and the campaigns sustained by Governments (often led by the United States and the European Union) and numerous NGOs to abolish them created the favorable atmosphere for the renewed prohibition of torture at the United Nations in 1984;49

48 The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, also known as the Convention on Certain Conventional Weapons (CCW) or the Inhumane Weapons Convention, was concluded on 10 October 1980, and entered into force on 2 December 1983. The Convention includes four Protocols which ban or restrict the use of various types of weapons that are considered to cause unnecessary or unjustifiable suffering or to have other humanitarian consequences. The weapons currently covered include landmines and booby-traps, incendiary weapons, weapons leaving undetectable fragments in the body, and blinding laser weapons. Currently, 90 States are Party to the Convention. On this Convention, see the following websites: [www.icrc.org/IHL.nsf/0/f6426235883f9d62c125641e0052d53d?OpenDocument], [http://www.ccwtreaty.com/]. 49 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment G.A. Res. 39/46, [Annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)], entered into force June 26, 1987. Available online at [www.hrweb.org/legal/cat.html].

618

Public Conscience in International Humanitarian Law Today

– A similar increase in global awareness about the tragic daily plight of hundreds of millions of children around the world, facilitated the movement led by UNICEF, the Swedish government and a group of NGOs for the adoption of UN Convention on the Rights of the Child (CRC) in 198950 and the current campaign to promote adoption of its Optional Protocol;51 – The campaigning of a coalition of NGOs, the „International Campaign to Ban Landmines“ (ICBL) (awarded the 1997 Nobel Peace Prize52) and some like-minded governments led principally by Canada and others successfully pushed for a complete ban of antipersonnel landmines which became known as the 1997 Ottawa Treaty.53 A group of determined NGOs, the Coalition for the International Criminal Court, played an instrumental role in the creation of the International Criminal Court. Long the dream of international lawyers, the creation of the Court was achieved with adoption in July 1998 of the Rome Statute. This Statute contributed to

50 Adopted and opened for signature, ratification and accession by the United Nations General Assembly resolution 44/25 of 20 November 1989. Available online: [http://www.unhchr.ch/html/ menu3/b/k2crc.htm]. 51 11 international NGOs are party to the joint appeal: Amnesty International (AI), Association for the Prevention of Torture (APT), Human Rights Watch, the International Commission of Jurists (ICJ), the International Federation of Action by Christians for the Abolition of Torture (Fi.ACAT), the International Federation for Human Rights (FIDH), the International League for Human Rights, the International Service for Human Rights (ISHR), the International Rehabilitation Council for Torture Victims (IRCT), the World Organisation against Torture (OMCT) and REDRESS Trust for Torture Survivors. [http://www.apt.ch/un/dop/pr190702.htm]. 52 See the following press release available online [http://www.nobel.se/peace/laureates/1997/ press.html]: „The Norwegian Nobel Committee has decided to award the Nobel Peace Prize for 1997, in two equal parts, to the International Campaign to Ban Landmines (ICBL) and to the campaign's coordinator Jody Williams for their work for the banning and clearing of antipersonnel mines. The ICBL and Jody Williams started a process which in the space of a few years changed a ban on anti-personnel mines from a vision to a feasible reality. The Convention which will be signed in Ottawa in December this year is to a considerable extent a result of their important work. There are already over 1,000 organizations, large and small, affiliated to the ICBL, making up a network through which it has been possible to express and mediate a broad wave of popular commitment in an unprecedented way. With the governments of several small and medium-sized countries taking the issue up and taking steps to deal with it, this work has grown into a convincing example of an effective policy for peace.“ 53 Kenneth Anderson, „The Ottawa Convention Banning Landmines, the Role of International NonGovernmental Organizations and the Idea of International Civil Society“, EJIL, Vol. 11, (2000) No. 1, full text of the article available online: [http://www.ejil.org/journal/Vol11/No1/art8.html].

619

Michel Veuthey

both the implementation – which we shall briefly discuss later – and the substance of international humanitarian law.54 2.2. Public Conscience behind the Law: Public Conscience as the Driving Force behind the Implementation of International Humanitarian Law a) The ICRC The ICRC was established in 1863 in order to assist and protect wounded soldiers on the battlefield. Its mandate was successively extended to prisoners of war during WW I and to civilians during the Spanish Civil War and WW II. An actor in mobilizing public conscience for the protection of war victims, mostly behind the scenes, the ICRC’s policies and work are also strongly influenced by other actors, governments, NGOs, the United Nations, as well as, obviously, by victims themselves. Its medical doctors, as witnesses of the suffering of civilian victims of antipersonnel landmines, were the first to call for a total ban of such weapons, launched a media campaign against antipersonnel landmines, and played an important role in quietly lobbying Governments on behalf of the adoption of the Ottawa Treaty. The ICRC was especially active for the adoption of the Fourth Protocol to the 1980 CCW Convention, relating to Blinding Laser Weapons.55 The ICRC uses international fora to conduct its „humanitarian diplomacy“. Aware that protecting the victims of armed conflict requires a broad-based approach, the ICRC takes diplomatic initiatives with Governments, international organizations and representatives of civil society to promote knowledge and development of humanitarian law, explain the ICRC's position on humanitarian issues, and raise awareness of current crises and the needs of the victims.56

54 The Coalition for the International Criminal Court is a network of well over 1,000 nongovernmental organizations (NGOs) advocating for a fair, effective and independent International Criminal Court (ICC). See their website: [http://www.iccnow.org/]. 55 Louise Doswald-Beck, „New Protocol on Blinding Laser Weapons“, IRRC, Geneva, No. 312, pp. 272–299. 56 ICRC Annual Report 2002. Available online at: [http://www.icrc.org/web/eng/siteeng0.nsf/ iwpList98/F96F929FCEEAB36FC1256D500023DAEE].

620

Public Conscience in International Humanitarian Law Today

b) The United Nations Public conscience, with the support of such powerful voices as Sean McBride, a co-founder of Amnesty International in 1961 and Nobel Peace Prize in 1974, forced the United Nations, which had given up the idea of dealing with laws of war, to reconsider the issue of human rights in armed conflicts at the 1968 Tehran Conference on Human Rights. According to Article 89 of the 1977 Additional Protocol I, „In situations of serious violations or the Conventions or of this Protocol, the High Contracting Parties undertake to act jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter.“ This was a quite important provision because it allows for creativity and flexibility as needed, within the framework of the UN Charter. Since the late seventies, the involvement of the UN in the implementation of IHL has taken many forms: denunciations of violations of IHL in resolutions by the Security Council or the General Assembly (regarding „human rights violations in territories occupied by Israel“, but also in Afghanistan, in El Salvador, in Guatemala, in the Iraq-Iran conflict, in the Gulf War, and even the dispatching of a mission to Iraq and Iran in 1985 to investigate conditions under which prisoners of war were being held, and, since 1992, in former Yugoslavia57). The UN Security Council regularly discussed humanitarian issues such as the protection of the civilian population, in 1999,58 in 200159 and 2002.60 The 2001 report mentioned the need for „a culture of protection“. The 2002 report contains a „Roadmap for the

57 Of special interest are: Resolution 764 (1992) of 13 July 1992, in which the Security Council reaffirmed that all parties are bound to comply with the obligations under international humanitarian law and in particular the Geneva Conventions of 12 August 1949, and that persons who commit or order the commission of grave breaches of the Conventions are individually responsible in respect of such breaches; Resolution 771 (1992) of 13 August 1992, in which it demanded that all parties immediately cease and desist from all breaches of international humanitarian law; Resolution 780 (1992) of 6 October 1992, in which it requested the Secretary-General to establish, as a matter of urgency, an impartial Commission of Experts to examine and analyze the information submitted pursuant to resolutions 771 (1992) and 780 (1992), together with such further information as the Commission of Experts may obtain, with a view to providing the Secretary-General with its conclusions on the evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law committed in the territory of the former Yugoslavia. 58 Report of the Secretary-General to the Security Council on the protection of civilians in armed conflict. S/1999/957. 59 Report of the Secretary-General to the Security Council on the protection of civilians in armed conflict. S/2001/331. 60 Report of the Secretary-General to the Security Council on the protection of civilians in armed conflict. S/2002/1300.

621

Michel Veuthey

protection of civilians“, with a subtitle „enhancing the architecture of protection“. Public conscience could help to build the necessary political will to implement this interesting list. Ending the impunity of perpetrators of atrocities is a major challenge.61 The most important step taken by the UN in this context is the establishment of international criminal tribunals such as those that were created for the former Yugoslavia and Rwanda. c) Human Rights NGOs In addition to the formal and informal mechanisms provided for by treaty law, NGOs play an increasingly important role in the implementation of international humanitarian law. NGOs keep United Nations Human Rights mechanisms under close scrutiny. The creation of Médecins Sans Frontières (MSF) („Doctors Without Borders“) by French medical doctors unhappy about the discretion of the Red Cross during the Nigerian Civil War was both a new development in humanitarian action and had a distinct influence on the evolution of the ICRC’s behavior. Human rights NGOs, which had campaigned for the Conventions against torture, for the rights of the child and for a total ban of antipersonnel landmines, remained mobilized for the effective implementation of those treaties. They often created networks or acted alone. d) Local Civil Society Article 18 of the First 1949 Geneva Convention mentions the role of the local population. Military authorities shall permit the inhabitants and relief societies, spontaneously or under their direction, to „collect and care for wounded and sick of whatever nationality.“ Paragraph 3 provides that „no one ever shall be molested or convicted for having nursed the wounded or sick.“ As the security of expatriate humanitarian workers becomes more problematic, the role of local civil society in the implementation of humanitarian law increases. It was the case in Somalia after the withdrawal of the peacekeeping forces, in Afghanistan and Iraq shortly before

61 Mary Griffin, « Ending the impunity of human rights atrocities : A major challenge for international law in the 21st century ». International Review of the Red Cross. 2000, No. 838, pp. 369–389.

622

Public Conscience in International Humanitarian Law Today

the US intervention: expatriates from most humanitarian organizations had to leave. Only local staff remained. Even the United Nations, which had for so many years kept the NGO world at arms length, is now undertaking a „Global Programme“ leading to an International Conference at UN headquarters in 2005 on „The Civil Society in the Prevention of Armed Conflict“. It echoes the opening words of the UN Charter („We, the peoples of the United Nations…“). 2. The Development of Implementation Mechanisms a) The Collective Responsibility of High Contracting Parties Common Article 1 to the 1949 Geneva Conventions calling the High Contracting Parties (i.e. the States bound by the Conventions) to „respect and to ensure respect“ for the Conventions „in all circumstances“ was for many years considered as an empty repetition lacking substance. The reaffirmation of the individual and collective responsibility in Articles 1 and 89 of Additional Protocol I was the „wake-up call“ for the reality of Common Article 1 of 1949. This is an area where action is clearly needed. Ideas for the implementation of Common Article 1 abound. Measures available to States Party to the Geneva Conventions for fulfilling their obligation to ensure respect for international law according to Article 1 Common to the 1949 Geneva Conventions62 are an integral part of addressing the dictates of public conscience. They could include diplomatic démarches and pressure, both bilateral and discrete or multilateral and public, as well as coercive measures (diplomatic, trade, arms, trade embargo, reduction or suspension of public aid) individually or in cooperation with the United Nations and regional organizations.63 The public conscience – on the national, regional and international level – should be enlisted to give substance to this open-ended provision. The Brahimi Report64 on U.N. peacekeeping, the debates at the Security Council on Africa, the

62 See Laurence Boisson de Chazournes and Luigi Condorelli, «Common Article 1 of the Geneva Conventions revisited: Protecting collective interests» IRRC, Geneva, No. 837, pp. 67–87. Available online at [http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList74/ CBCB2AE7846BD1E9C1256B66005E32F5]. 63 See Umesh Palwankar, «Measures available to States for fulfilling their obligation to ensure respect for international humanitarian law» IRRC, no. 298, pp. 9–25, available online at: [http://www.icrc.org/ Web/Eng/siteeng0.nsf/iwpList113/35289C31F0187A41C1256B6600591427]. 64 Full Report („Report of the Panel on United Nations Peace Operations“ A/55/305 – S/2000/809) and follow-up documents available online at: [http://www.un.org/peace/reports/peace_operations/].

623

Michel Veuthey

massacres in Rwanda and Srebrenica, the plight of the civilian population in armed conflicts, the reports on the „Right to Protect“ or on „Human Security“ could provide food for thought and for action here. b) Peace Enforcement Operations Peacekeeping operations failed to prevent chaos in Somalia, genocide in Rwanda, massacre in Srebenica. Individual Governments and the United Nations had to acknowledge these failures, which were well documented by the media. Public policy debate in ongoing about the need for clearer mandates for U.N. troops, including the prevention of war crimes, the protection of civilian populations and humanitarian workers, and the search for and arrest of persons suspected of war crimes. Public conscience may dictate that action be taken, but without adequate resources even the clearest mandates cannot be fulfilled. Will Kosovo and East Timor make the U.N. Trusteeship a new possibility for „failed States“ or for peace processes in need for safer road maps?65 c) The Ad Hoc Tribunals For many years, criminal prosecutions of war criminals were essentially limited to WW II cases. Practically no prosecutions were conducted for crimes committed during decolonization: no action was taken; and when it was, it was it was probably unjust or inadequate. The general amnesties in France and in Algeria after 1962 or token prosecution of Lt. Calley for the My Lai massacre in Vietnam come to mind here. The public conscience seems to have only really reawakened by the so-called „ethnic cleansing“ in former Yugoslavia and the Rwandan genocide, which led he U.N. Security Council to establish the Tribunals for the Former Yugoslavia and Rwanda.

65 See Le Monde, Sunday 24 August 2003, „SOS au Proche-Orient“: „L'Autorité et Israël ont besoin d'un tuteur, politique et militaire. L'idée commence à poindre d'une formule qui consisterait à placer les territoires sous mandat onusien, garanti par le déploiement d'une force internationale, comprenant évidemment les Etats-Unis. C'est dans le cadre de cette tutelle – un peu comme au Timor ou au Kosovo – que serait conduite la lutte contre les organisations terroristes, mené le démantèlement des implantations et le retrait militaire israélien, enfin créé l'Etat palestinien. Après tant d'échecs, une majorité d'Israéliens et de Palestiniens souscriraient à cette approche.“

624

Public Conscience in International Humanitarian Law Today

The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law committed in the Territory of the Former Yugoslavia (ICTY) was established by the Security Council established in May 199366 for serious violations committed there since 1991. The Tribunal has competence on the following offenses: grave breaches of the Geneva Conventions,67 violations of the laws and customs of war,68 genocide,69 and crimes against humanity.70 The creation of The International Tribunal on Rwanda (ICTR) followed in 1994. These were the first international criminal tribunals to be established for what was essentially a non-international conflict. The 1949 Geneva Conventions had established the principles of international jurisdiction for „grave breaches“; the ad hoc tribunals extended the scope of „grave breaches“ to noninternational armed conflicts. The ad hoc Tribunals will continue to need require adequate resources and political support.71 Their existence does not do away with the obligation in the 1949 Geneva Conventions for all States Party to see to the punishment of grave breaches wherever they occur and whoever perpetrates them, be they Government officials or warlords.72 Some countries, like Sierra Leone and Cambodia have since chosen to establish—with the support of the United Nations—their own ad hoc courts for the prosecution of war crimes. d) The International Criminal Court (ICC) The International Criminal Court needs to be supported. It is only one part of a system that would end impunity to the perpetrators of genocide, crimes against humanity, war crimes, and torture. Such a system could certainly deter people contemplating such crimes, allow victims to obtain justice and support reconciliation efforts. States Party to the Geneva Conventions have been increasingly aware

66 67 68 69 70 71

Resolution 827. Article 2 of the Statute. Article 3. Article 4. Article 5. See Iain Guest (Overseas Development Council) on National Public Radio („All Things Considered“), Friday 16 April 1999. „The Hague Tribunal was established by the UN Security Council in May 1993, ostensibly to deter war crimes, but the [Security] Council squabbled over funding and even delayed appointing a prosecutor for a year.“ (on 8 July 1994, Resolution 936, appointing Richard J. Goldstone). 72 See Patricia Grossman, „Bring Warlords to Justice“, International Herald Tribune, SaturdaySunday, March 9–10, 2002, p.10.

625

Michel Veuthey

of their responsibility to respect international humanitarian law as individual States and increasingly collectively. The awareness of their collective responsibility is a more recent phenomenon, resulting from the combined pressure of public opinion, the ICRC and various human rights NGOs,73 bilaterally or before United Nations bodies. This collective responsibility pertains not only the enforcement of humanitarian rules. It contributes to national stability and international security, preventing disorderly movements of populations, uprooting of displaced persons and refugees, and the spreading of uncontrolled violence around the world..74 The adoption of the 1998 Rome Statute and the establishment of the ICC do not relieve States Parties to the Geneva Conventions from the obligation to prosecute war criminals. Public conscience today dictates a more concrete fulfillment of this very clear obligation to either prosecute or extradite war criminals („aut punire aut dedere“). In addition, the controversy over the Belgian Law on Universal Jurisdiction is not only a legal quarrel. A balance must certainly be found between diplomatic immunities and the search for perfect and quick justice. e) Prevention: Justice and Reconciliation Public conscience is not only demanding justice through criminal prosecution before national or international courts. In many countries, the need to achieve a peaceful settlement helped find a compromise between complete justice or immunity. The most common solution is the establishment of „Truth and Reconciliation Commissions“, as was done in South Africa and in many other countries, especially in Latin America75 in „restorative justice procedures“.76

73 See the following recommendations by Amnesty International: 1. Ratify the Rome Statute of the International Criminal Court and enact effective implementing legislation to cooperate fully with the Court. 2. Enact and use universal jurisdiction legislation for the crimes of genocide, crimes against humanity, war crimes, torture, extra-judicial executions and „disappearances“, in order that their national courts can investigate and, if there is sufficient admissible evidence, prosecute anyone who enters its territory suspected of these crimes, regardless of where the crime was committed or the nationality of the accused or the victim. 3. Enact legislation to ensure effective cooperation with the International Criminal Tribunals for the former Yugoslavia and Rwanda and any other international criminal court created in the future. 74 International humanitarian law is one of the many legal, political, ethical instruments to deal, in today’s global disorder, with our „genocidal mentality“ and to „become healers, not killers, of our species“ (Robert Jay Lifton, Eric Markusen, The Genocidal Mentality. Nazi Holocaust and Nuclear Threat, New York, Basic Books, 1990, p. 279). 75 Priscilla B. Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions. New York, Routledge, 2002, 344 p.

626

Public Conscience in International Humanitarian Law Today

Other local mechanisms of conflict resolution and reconciliation resurrected from age-old traditions, such as „gacaca“ in Rwanda, may prove to be effective in some circumstances.77 2.3. Public Conscience beyond the Law: Providing for the Unpredictable According to the Martens Clause, „the requirements of public conscience“ should provide fail-safe protection for enemy combatants and civilians in cases not covered in the written law. It should provide fundamental guarantees for the treatment of civilians and prisoners in cases where the applicability of the 1949 Geneva Conventions is denied, either generally or specifically. This would cover those situations where hostilities are not acknowledged as an „armed conflict“. It would also cover circumstances where the Third or Fourth 1949 Convention are not recognized as applicable, for example where captured fighters are not granted prisoner of war status or the right to a fair trial according to Article 5 of the Fourth Convention or Common Article 3. In this sense, public conscience should fill in the „legal black holes“ that have increasingly popped up in conflicts in the post-Cold War era involving both State and non-State actors and into which an alarming number of civilians, prisoners of war and even humanitarian workers fall. III. Battle over Public Conscience: Public Conscience vs. Public Inconscience „The only thing necessary for the triumph of evil is for good men to do nothing“ Edmund Burke78

While international media have played a decisive role in raising public awareness about humanitarian needs in the past, manipulation remains a possibility.79 More-

76 Guillermo Kerber, „Overcoming Violence and Pursuing Justice. An Introduction to Restorative Justice Procedures“ The Ecumenical Review, Geneva, WCC, Vol. 55, Nr. 2, April 2003, pp. 151–162. 77 See Laura Olson, „Mechanisms complementing prosecution“, IRRC, Geneva, No. 845, pp. 173–189 (March 2002) available online at [www.icrc.org/web/eng/siteeng0.nsf/0/ 079dfcdd503ae503c1256ba700329b49?OpenDocument]. 78 Quoted by William Shawcross, Deliver Us From Evil. Peacekeepers, Warlords and a World of Endless Conflict. New York, Simon & Schuster, 2000, p. 13. 79 Murder, kidnapping, and intimidation of journalists „place severe constraints on freedom of expression.“ This is one of the points presented in a new „Declaration of Principles on Freedom of

627

Michel Veuthey

over, an inflamed public opinion – not necessarily public conscience but rather public inconscience – may incite further violations of international law, especially in the form of reprisals. As was alluded earlier, the public conscience is not static. It can change over time, it can even be manipulated for the better or for the worse. It can be enlightened by empathy or tinged by prejudice. From war propaganda to „spin doctors“, manipulations are not infrequent. It may be overshadowed by public opinion. A lot can be said on the good use – and misuse – of media80 and especially on their influence on local and international public opinion and humanitarian standards. „Radio Mille Collines“81 in Rwanda, advocating genocide, with the support of European experts, is an extremely negative example. 82 Is „public conscience“ synonymous with „public opinion“ as President Wilson suggested?83 Is the public conscience represented by public opinion expressed on CNN or Al Jazeera? Can opinion polls measure it? Is it better represented by statements of spiritual leaders? By reports of Amnesty International or Human Rights Watch? However, the impact of radio on combatants and civilian populations can be very positive for promoting humanitarian principles on the ground, particularly when programs are broadcasted in local languages. Precautions are required with respect to dialects, accents, voices and characters so that the story cannot be identified with one side of the conflict. This medium could be more frequently used for „dissemination“ purposes, such as training, education and promotion and public opinion campaigns. Comic strips can also be used to reach both combatants and a greater public. A few years ago, the ICRC distributed comic strips on fundamental humanitarian ru-

80

81 82

83

Expression» adopted October 19 by the Organization of American States (OAS). [http://www.cidh.oas.org/declaration.htm]. See also the Web Site of the OAS Office of the Special Rapporteur for Freedom of Expression: [http://www.cidh.oas.org/Relatoria/English/Home.htm]. Yael Danieli (Ed.), Sharing the Front Line and the Back Hills. International Protectors and Providers: Peacekeepers, Humanitarian Aid Workers and the Media in the Midst of Crisis, Amityville, NY, Baywood Publishing Company, 2002, 429 p. See the Web Site of Radio Netherlands: „Hate or Opposition Radio?“ [http://www.rnw.nl/realradio/dossiers/html/definitions.html]. See Morand Fachot, Fondation Hirondelle: News, Contacts, Links „Inventaire des radios „de haine“ et à but humanitaire dans les zones de conflit“: [http://www.hirondelle.org/hirondelle.nsf/c0d4ea7a44b64faec12564e500421ff1/e565035665405536 c12568e40060d3f2?OpenDocument]. Paul Guggenheim, «L’organisation de l’opinion publique dans la communauté internationale» Annales d’Etudes Internationales, Genève, IUHEI, 1970, p. 155.

628

Public Conscience in International Humanitarian Law Today

les to children in the Philippines, which were readily accepted and quickly found their way to their parents and other individuals, most notably guerrilla fighters. This is an excellent example of simple and clear dissemination of humanitarian principles, in this case in the form of a comic strip can have a wide impact. Other new technologies are now also being used in non-international armed conflicts by insurgent groups84 or by human rights NGOs to influence public conscience: electronic mailing lists, websites, online training. 3.1. Discarding or Defending the Geneva Conventions Shortly after the celebration of the fiftieth anniversary of the 1949 Geneva Conventions, some expressed doubts about the validity of these instruments in today’s conflicts, especially post 11 September 2001.85 The Geneva Conventions were not only defended behind closed doors. They were also defended successfully in public in newspapers.86 One such example is the open letter sent by Human Rights Watch to Ms. Condoleeza Rice on the applicability of the 1949 Geneva Conventions in Afghanistan.87 3.2. The Civilian Population as the Corner Stone of IHL Public conscience is challenged to reaffirm the protection of civilian persons, of all civilian persons, even in the „Global War Against Terror“ or in any kind of resistance to occupation. This intrinsically covers humanitarian workers, United Nations representatives, diplomats and journalists.

84 Such as in Chiapas (Mexico) with the help of American Websites, such as [www.chiapasmediaproject.org]. 85 See White House Counsel Alberto R. Gonzales, quoted by Stuart Taylor Jr. „We Don’t Need to Be Scofflaws to Attack Terror. Disregarding the Geneva Conventions Will Undermine the Ability of the United States to Wage War“ The Atlantic Monthly (February 2, 2002), available online (accessed 23 August 2003): [http://www.theatlantic.com/politics/nj/taylor2002-02-05.htm]. 86 See Hans-Peter Gasser, „Total War Against Terrorism? The Geneva Conventions Also Apply to the Anti-Terror Effort“, Neue Zürcher Zeitung (NZZ), 19. August 2002, and Marco Sassoli, „Nebenopfer der Angriffe vom 11. September? Die Gefangenen in Guantanamo und die Genfer Abkommen“, NZZ, 23. Januar 2002. 87 Letter by Kenneth Roth, Executive Director, Human Rights Watch to The Honorable Condoleeza Rice, National Security Advisor, The White House, Washington DC, Janury 28, 2002. Available online at: [http://www.hrw.org/press/2002/01/us012802-ltr.htm].

629

Michel Veuthey

3.3. Torture is always unacceptable Public conscience could be evoked to in revisiting an ancient battlefield: the prohibition of torture. Denying the legitimacy of torture was a victory of European Enlightenment as put forth by Beccaria88 and Voltaire. The 1984 U.N. Convention was not the last word on the subject, nor did it not close the debate. Lawyers, medical doctors, human rights activists, 89 opinion makers, spiritual leaders should reaffirm this hard-won prohibition. This would benefit prisoners of all sides, of every status and in so many places.90 Both terrorism against civilians and torture feed themselves: terrorism gives a pretext for torture, and torture breaks all restraints. This most unfortunate pattern was well documented by Germaine Tillion, a French resistant fighter during Word War II, writing about the war in Algeria in her book „Les Ennemis Complémentaires“.91 IV. Conclusion: Mobilizing Public Conscience on Behalf of International Humanitarian Law Today „Le droit est un essai toujours précaire pour rationaliser la force et l’incliner vers le domaine de l’amour. Mais il est aussi un combat“ Emmanuel Mounier

Mobilizing public conscience on behalf of international humanitarian law means using both the old and the new: the human factor and the latest technological developments. The human factor is still key to public conscience in international humanitarian law. And technology could definitely help in providing informa-

88 Cesare Beccaria in his book On Crimes and Punishment published in 1764, originally published in Italian (Dei delitti e delle pene) and quickly translated into French and English, protests against the use of torture to obtain confessions. English An essay on crimes and punishments. Written by the Marquis Beccaria of Milan. With a commentary attributed to Monsieur de Voltaire. Philadelphia: Printed and sold by R. Bell, next door to St. Paul's Church, in Third-Street. MDCCLXXVIII. [1778] Translated from the French by Edward D. Ingraham. Second American edition. Philadelphia (No. 175, Chesnut St.): Published by Philip H. Nicklin: A. Walker, printer, 24, Arch St., 1819) available online at [http://www.constitution.org/cb/crim_pun.txt]. 89 See the excellent file by Human Rights Watch „The Legal Prohibition Against Torture“ available online at: [http://www.hrw.org/press/2001/11/TortureQandA.htm]. 90 See Kenneth Roth, „Prisoners of War at Guantanamo. Bush Policy Endangers American and Allied Troops“. International Herald Tribune, Paris, March 5, 2002. 91 Germaine Tillion, Les ennemis complémentaires. Paris. Editions de Minuit, 1960, 218 p.

630

Public Conscience in International Humanitarian Law Today

tion on history, law, training methods. In the words of Pierre Lévy, the Web could be our „collective intelligence“.92 In the field, technology could provide ways and means to monitor in real time the conduct of parties to conflicts as well as to make them aware of their obligations. Public conscience is not the monopoly of legal experts. More research is needed in history, anthropology, spirituality, international relations, in order to defend fundamental rights pertaining to life and human dignity in all situations. Proposals: Towards a Renaissance of Public Conscience „The whole idea of compassion is based on a keen awareness of the interdependence f all these living beings, which are all part of one another and all involved in one another“ Thomas Merton

1. Research Roots Renaissance literally means re-birth, renewal, return to the source. We need to research the roots of fundamental values in all civilizations, in order to move beyond the superficial universality of legal instruments, too often perceived as imposed by Western powers, and poorly implemented in too many cases. As the ICRC survey conducted in 1999 for the 50th anniversary of the 1949 Geneva Conventions demonstrated, local spiritual values are often the only efficient, convincing force that motivates the compliance with humanitarian rules in warfare.93 2. Anchor Again in All Civilizations Without losing the universality attained by the ratification of the 1949 Geneva Conventions – and in especially Common Article 3 – we need to anchor them in all civilizations in a new awareness of belonging, empowerment and interdependence, a renewed commitment to common humanity and for the respect of common values and objects indispensable to the survival of humankind such as

92 Pierre Levy, Pour l’intelligence collective. Paris, La Découverte, 1994. 93 See the Executive Summary of the Global Report at: [http://www.icrc.org/icrceng.nsf/ cacfdf48ca698b641256242003b3295/be5298c00339e340c1256af4004efaf3?OpenDocument].

631

Michel Veuthey

common values and objects indispensable to the survival of humankind such as water, food supplies, public health structures, cultural and spiritual treasures. 3. Reaffirm Universality of Fundamental Values We need to underline the common values, to move beyond the celebrations of the 20th century of the 50th anniversary of the UN Charter, of the Universal Declaration on Human Rights, of the 1949 Geneva Conventions, of the 1951 Convention on Refugees to reaffirm the universality of fundamental values. There are divergences of opinion between American and European allies (on the death penalty, for example). There are differences of emphasis between civil and political rights on one hand and social and economic rights on the other. There are also differences of importance of individual and group rights. 94 We therefore need to reaffirm a common core of human values, in discovering what makes them universal beyond cultural differences: – he right to life; – The right to personal security and religious freedom; – The right to family life; – The right to health care, adequate nutrition and shelter; – The principle of non-discrimination; – The prohibition of torture, inhuman or degrading treatment or punishment. 95 More than a tool for the interpretation of existing humanitarian law, public conscience should provoke deeper levels of dialogue – including root causes of conflicts and the spiritual dimension of human dignity – in order to renew the recognition of the fundamental values respected as common to all humankind. 4. Reinforce Existing Mechanisms for the Respect of Fundamental Guarantees The international community of States Party to the 1949 Geneva Conventions should reaffirm their collective responsibility according to Article 1, common to

94 „Human rights is a complex idea with differing emphases even as between various Western societies. Only with appropriate humility and self-doubt can true dialogue be encouraged.“ Stephen J. Toope, Cultural Diversity and Human Rights (F. R. Scott Lecture) [http://collections.ic.gc.ca/tags/ cultural.html]. 95 Paul Grossrieder, „Humanitarian Standards and Cultural Differences“ in ICRC, Seminar for nongovernmental organizations on humanitarian standards and cultural differences. Summary Report, ICRC & The Geneva Foundation to Protect Health in War, Geneva, 14 December 1998.

632

Public Conscience in International Humanitarian Law Today

all four Conventions and to Protocol I. According to this provision, „The High Contracting Parties undertake to respect and to ensure respect for this Convention in all circumstances“. Should measures96 be limited to diplomacy, adoption of resolutions or rather the use of sanctions97 and peace-enforcement operations in order to stop genocide and arrest war criminals? A number of Security Council resolutions, including those on anarchic conflicts, call upon all parties to respect international humanitarian law and reaffirm that those responsible for breaches thereof should be held individually accountable. Public conscience reaches beyond international humanitarian law. It is relevant for human rights law, refugee law, the protection of the environment, the struggles against corruption,98 arms and drug trafficking, as well as the availability of affordable food and medicines99 whenever and wherever needed. In line with Boutros Ghali’s Agenda for Peace100 and Agenda for Development,101 and with UNHCR’s Agenda for Protection,102 public conscience calls for a global approach, an „Agenda for Humankind“ or, more bluntly, an „Agenda for Survival“. More human resources (not only legal advisers and human rights advocates but peacekeepers with adequate mandates and resources) and up-to-date technical tools (satellite photos, radio and communication monitoring by Governments or even non-State actors) should be used to prevent and prosecute serious human rights violations, war crimes, crimes against humanity and genocide.

96 See Umesh Palwankar, « Measures available to States for fulfilling their obligation to ensure respect for international humanitarian law » IRRC, no. 298, pp. 9–25. [http://www.icrc.org/ Web/Eng/siteeng0.nsf/iwpList113/35289C31F0187A41C1256B6600591427]. 97 Such as the U.S. Foreign Assistance Act, which forbids security assistance to any government that „engages in a consistent pattern of gross violations of internationally recognized human rights“ [22 U.S.C. Secs. 2034, 2151n]. 98 See W. Reno, Corruption and State Politics in Sierra Leone, Cambridge, Cambridge University Press, 1995 99 See the „Drugs for Neglected Diseases Initiative“, available online at: [www.dndi.org]. 100 A/47/277 - S/24111 17 June 1992. An Agenda for Peace Preventive diplomacy, peacemaking and peace-keeping. [www.un.org/Docs/SG/agpeace.html]. 101 An Agenda for Development Report of the Secretary-General. A/48/935, 6 May 1994. Available online (16 August 2003) [www.un.org/Docs/SG/agdev.html]. 102 See the UNHCR main website for the « Global Consultations » [http://www.unhcr.ch/cgibin/texis/vtx/global-consultations]. The full text of the Agenda for Protection is available online in PDF format at: [http://www.unhcr.bg/pubs/agenda_protection/en/agenda_for_protection_toc.htm].

633

Michel Veuthey

5. Reinvent Remedies We need to be more creative in applying remedies103 to promote the respect of fundamental values in all situations. Some remedies might include: 1. The reaffirmation of fundamental humanitarian rules, customs and principles in a simple, easy to understand form, and translation into local languages; 2. Training of arm bearers (military, police, private security groups) in fundamental restraints of violence and essential humanitarian principles;104 3. Conducting international, regional and local public opinion campaigns to promote fundamental humanitarian values105 and counter hate campaigns; 4. Mobilization of public role models (such as artists or athletes) who can influence leaders and public opinion at large in close contact with local traditions;106 5. Including spiritual leaders in those campaigns, especially when religious and spiritual values have been used to fuel conflicts;107 6. Preparing the youth to recognize and defend the distinction between humanity and inhumanity through educational programs.108 Reintegrate child soldiers in society;109

103 See [http://www.guardian.co.uk/waronterror/story/0,1361,583028,00.html]. Dr. Scilla Elworthy, „Conflict resolution in the 21st century“, Tuesday October 30, 2001. And Michel Veuthey „Remedies to Promote the Respect of Fundamental Human Values in NonInternational Armed Conflicts“, The Israeli Yearbook on Human Rights, Vol. 30 (2001), pp. 37–77. 104 The March 2002 issue of „Democracy Issues“, an electronic journal published by the United States Department of State, is dedicated to human rights education. It includes some interesting contributions, including articles by Felisa Tibbitts („Emerging Models for Human Rights Education“) and Nanc Flowers („Human Rights Education in U.S. Schools“); an interview with human rights educators from South Africa („Human Rights Education in Diverse, Developing Nations: A Case in Point -- South Africa“); and an article on training for judges, prosecutors, attorneys and the police („International Human Rights Training“ by Michael Hartmann). The journal also features a short bibliography and related web sites. The full text of the journal can be found at: [http://usinfo.state.gov/journals/itdhr/0302/ijde/ijde0302.htm]. 105 Including by campaigns for a universal ratification of human rights and international humanitarian law treaties. See Hans-Peter Gasser, „Steps taken to encourage States to accept the 1977 Protocols“, IRRC, No. 258, May 1987. An other example is the campaign conducted in February 2002 to recommend to the U.S. Senate that it ratify the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict [http://world.pylduck.com/02/0212.html]. 106 See the ICRC’s „Woza Africa! Music goes to war.“ This was the slogan adopted by six popular African musicians who, responding to the ICRC's call, led a campaign in 1997 to help curb the indiscriminate violence that has long plagued their continent. The musicians strove to reach people's hearts and minds through a series of original songs which they performed live and recorded. 107 See THE MILLENNIUM WORLD PEACE SUMMIT OF RELIGIOUS AND SPIRITUAL LEADERS New York, August 2000 «Commitment to Global Peace» [http://global-forum.org/ research/globalpeace.html].

634

Public Conscience in International Humanitarian Law Today

7. Learning from human rights110 and environmental111 activists in order to promote fundamental humanitarian values in order that in the long run humanitarian norms become a part of humanitarian consciousness; 8. Monitoring arms transfers, beginning with light weapons,112 and promoting innovative disarmament approaches, such as „weapons for food“ or „weapons for development“;

108 See the educational programs of the International Committee of the Red Cross (ICRC) [www.icrc.org], Red Cross and Red Crescent National Societies as well as by the UNESCO [www.unesco.org] and Human Rights NGOs such as Human Rights Watch, Human Rights Internet and academic institutions such as the International Institute of Humanitarian Law, in San Remo (Italy) with courses on laws of war for military personnel, on refugee law and on international humanitarian law [www.iihl.org]. 109 It is not only needed to stop the use of child soldiers [http://www.hrw.org/campaigns/ crp/index.htm] but also to reintegrate them in society: see Mike Wessels, «Child Soldiers», Bulletin of Atomic Scientists, Chicago, Nov/Dec 1997 [http://pangaea.org/street_children/africa/armies.htm] and the website of the Office of the SRSG for Children and Armed Conflict [http://www.undp.org/ erd/recovery/ddr/organizations/osrg.htm] and the UNICEF « Children at both ends of the gun »): [http://www.unicef.org/graca/kidsoldi.htm]. 110 See AMNESTY INTERNATIONAL HANDBOOK (Seventh Ed.), available online, at [http://www.amnesty-volunteer.org/aihandbook/] and especially Chapter 4 (« Campaigning ») and 5 (« AI Action - Advice and Guidelines ») as well as the excellent HUMAN RIGHTS EDUCATION HANDBOOK available online: [http://www.hrusa.org/hrmaterials/hreduseries/hrhandbook1/ toc.html] (Human Rights Resource Center, University of Minnesota, 2000). 111 See Morton Winston, «NGO Strategies for Promoting Corporate Social Responsibility» Ethics & International Affairs, Vol. 16, Number 1 (Spring 2002). According to Morton Winston, there is a basic divide between NGOs: – Engagers try to draw corporations into dialogue in order to persuade them by means of ethical and prudential arguments to adopt voluntary codes of conduct, while confronters believe that corporations will act only when their financial interests are threatened, and therefore take a more adversarial stance toward them. – Confrontational NGOs tend to employ moral stigmatization, or „naming and shaming,“ as their primary tactic, while NGOs that favor engagement offer dialogue and limited forms of cooperation with willing MNCs. 112 See William Hartung, „The New Business of War: Small Arms and the Business of Conflict“ Ethics & International Affairs Annual Journal of the Carnegie Council on Ethics and International Affairs, Vol. 15, No 1 (2001). The author’s argument is the following: The proliferation of internal conflicts fueled by small arms poses a grave threat to peace, democracy, and the rule of law. The weapons of choice in today's conflicts are not big-ticket items like long-range missiles, tanks, and fighter planes, but small and frighteningly accessible weapons ranging from handguns, carbines, and assault rifles on up to machine guns, rocket-propelled grenades, and shoulder-fired missiles. In conflict zones from Colombia to the Democratic Republic of the Congo, picking up a gun has become the preferred route for generating income, obtaining political power, and generating „employment“ for young people, many no more than children, who have little prospect of securing a decent education or a steady job. Ending the cycle of violence fueled by small arms must become a top priority for the international community. No single treaty or set of actions, however, will „solve“ the problem of light weapons proliferation. What is needed is a series of overlapping mea-

635

Michel Veuthey

9. Exerting better targeted bilateral and multilateral diplomatic, economic and adequate military pressures against violators, in accordance with the UN Charter and international humanitarian law;113 10. Fully including the respect of fundamental human values in the framework of the maintenance and re-establishment of international security.114 6. Re-Activate the Network of Humanity We need to re-activate – or to create, when needed – a network of humanity carrying fundamental human values in all circumstances, and to maintain – or reestablish – the corresponding mechanisms on the local, national, regional and international level. Public conscience can also be called upon to help to break barriers between different bodies of laws protecting human life and dignity – such as international humanitarian law, refugee law, and human rights among others – as well as between implementation mechanisms such as the ICRC, UNHCR, the U.N. and regional human rights mechanisms, as well as human rights NGOs. Public conscience is not imaginary nor a Maginot Line limited to the Hague Regulations and Geneva Conventions. It should be part of a continuum of safeguards for human dignity, animated by a network of State- and Non-State actors. The same fundamental values should be applicable in all situations of emergency115 (armed conflicts and other emergency situations), reconstruction, development, economical growth,116 peaceful settlement of conflicts, international, re-

sures involving stricter laws and regulations, greater transparency, and innovative diplomatic and economic initiatives. 113 See Anna Segall, «Economic sanctions : legal and policy constraints» IRRC December 1999, Vol. 81, No 836, pp. 763–784, and Claude Bruderlein, «U.N. Sanctions Can Be More Humane and Better Targeted» Public Affairs Report, University of California, Berkeley, Vol. 41, No. 1, January 2000. [http://www.igs.berkeley.edu/publications/par/Jan2000/Bruderlein.html]. Arthur C. Helton and Robert P. DeVecchi, « Human Rights, Humanitarian Intervention & Sanctions » [http://www.foreignpolicy2000.org/library/issuebriefs/IBHumanRights.html] and H.C. Graf Sponeck, « Sanctions and Humanitarian Exemptions: A Practitioner’s Commentary » European Journal of International Law, Vol. 13, Issue 1, 2002, pp. 81–87 – Full text available at: [http://www3.oup.co.uk/ejilaw/current/130081.sgm.abs.html]. 114 See Michel Veuthey, „The Contribution of the 1949 Geneva Conventions to International Security“, Refugee Survey Quarterly, Vol. 18, Nr. 3, 1999, pp. 22–26. 115 See OXFAM, « Africa at the Crossroads », Oxfam Policy Papers No 19 (March 02) [http://www.oxfam.org.uk/policy/papers/africacrossroads/africacrossroads.html]. 116 See Michael K. Addo (Editor) Human Rights Standards and the Responsibility of Transnational Corporations. The Hague, Kluwer Law International, 1999, 384 p.

636

Public Conscience in International Humanitarian Law Today

gional and national legal cooperation. In all situations, the human person should be at the center, taking into account the spiritual dimension of all human activities. 7. Rebuild Public Conscience „Either we live together as brothers, or we perish as fools.“ Martin Luther King

As cited in the introduction, „public conscience“ was introduced in positive international law by the Martens Clause at the Hague Peace Conference in 1899. It was the result of a compromise reached at the 1899 Hague Peace Conference to break a deadlock between Great and small Powers in Europe over the definition of combatants: in case of doubt international humanitarian rules should be interpreted in a manner consistent with standards of humanity and the demands of public conscience.117 Humanitarian law is at the same time rooted in the history of all traditions of humankind, in all parts of the world, and is also very much part of our future, as one essential safeguard for our survival as a species. In the words of Jean Pictet, one of the founding fathers of contemporary humanitarian law, respect for humanitarian law is „necessary to humankind's survival“. In the words of Martin Luther King: „The chain reaction of evil – hate begetting hate, wars producing more wars – must be broken, or we shall be plunged into the dark abyss of annihilation“. In today’s confrontations, we need more than ever a public conscience which could be a voice for the vulnerable – civilians and prisoners – and a constraint for both powerful States and non-State actors alike. If we fail to rally public conscience against the two demons threatening the very heart of humanitarian law: terrorism and torture, we may very well see a resurgence of widespread chaos, the law of the jungle, the dismantling of the entire structure of humanitarian law and hu-

117 See Paolo Benvenuti, « La clausola Martens e la tradizione classica del diritto naturale nella codificazione del diritto dei conflitti armati » in Scritti degli allievi in memoria di Giuseppe Barile, Padova, CEDAM, 1995, pp. 173–224; Antonio Cassese, „The Martens Clause: Half a Loaf or Simply Pie in the Sky?“ EJIL (2000), Vol. 11 No 1, pp. 187–216; Theodor Meron, „The Martens Clause, Principles of Humanity, and Dictates of Public Conscience“, AJIL, Vol 94, No. 2 (2000), pp. 78–89; Shigeki Miyazaki, „The Martens Clause and international humanitarian law“ in C. Swinarski (Ed.) Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en l'honneur de Jean Pictet, Geneva, ICRC, 1984, 1143 p., pp. 433–444; Rupert TICEHURST, « The Martens Clause and the Laws of Armed Conflict » IRRC, Geneva, No. 317, pp. 125–134, available online at: [http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList74/32AEA038821EA35EC1256B66005A747C]

637

Michel Veuthey

man rights. In defending these pillars of humanitarian law (the protection of the civilian population and the prohibition of torture), public conscience should combine both international security and human requirements. By setting limits – even unwritten limits – to confrontation, public conscience will open the way to restoring dialogue and cooperation.

638