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CommentaryBy K. HossainSenior Advocate Bangladesh
The task of commenting on a paper is made the more difficult if one findsoneself, as I do, in broad agreement with the analysis and conclusions inProfessor Keith's paper, which does, with admirable clarity and precision, whatit sets out to do, namely, to highlight the principal developments in the area ofinternational humanitarian law with special reference to recent practice and inparticular to the two Additional Protocols to the Geneva Conventions of 1949,which emerged from the Diplomatic Conference in 1977.Progressive development of the law in this area has certainly been taking placesince the end of World War 11. Professor Keith has focussed mainly on thechanges brought about in the Geneva Conventions framework by the AdditionalProtocols, thus:(i) by the inclusion in the first Protocol of wars of national liberation as acategory of armed conflict to which international humanitarian rules relating tointernational armed conflicts would apply;(ii) by the inclusion of a provision in the Second Protocol which seeks tosupplement and develop Article 3 common to the 1949 Geneva Conventionsrelating to non-international armed conflicts.(iii) by the inclusion of more elaborate provisions in the First Protocol for theeffective protection of civilian populations against the effects of hostilities, andin particular, provisions relating to aerial bombardment (Articles 48-60 ofProtocol I and Articles 13-16 of Protocol 11).(iv) by the amendment of criteria by reference to which a distinction can bedrawn between civilians and combatants, such that in Professor Keith'sjudgment, the balance has been moved substantially in favour of guerillawarfare.(v) by the inclusion of certain provisions relating to enforcement: dissemina-tion, reprisals and fact-finding inquiries.Professor Keith, in dealing with basic principles, refers to Article 1.2 of thisFirst Protocol which takes us back to the classical nineteenth century foundationsof international humanitarian law he de Martens clause, with only onedifference. While that clause spoke of usages established among civilisedpeoples, the laws of humanity and the dictates of the public conscience , Article1.2 has substituted for usages established among civilised peoples the wordsestablished custom . this causing a wit to remark that the twentieth century hade of civiIised peoples .us m the ActditionaI Protocols and the classicalh faaian law, I would suggest the paper mayb u e en i n s d f k d weight cert in *-war developments, which not onlygkaw*cioc@id x w: some o the ch ngcs an powerfully reinforce
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the nineteenth century principles, but are relevant for devising strategies to fillgap s which still remain-in the framework of international hu&itarian law andits enforcement.Thus, it may be useful to place the changes discussed in Professor Keith'spaper in the context of two ma jor streams of development in the sphere of publicinternational law in the immediate post-war period. One was the emergence ofthe doctrine of individual criminal responsibility for comm itting crimes againsthumanity , a category of international crime consisting essentially of gravebreaches of certain rules of international law, an d the othe r on the internationa-lisation of human rights. Th e Nuremburg Ch arter, General Assembly Resolution95(I) affirming the Nurem burg Principles, the Convention on G enocide adoptedby the General Assembly and a series of subsequent declarations and judicialpronouncements provide the foundation for the doctrine of individual criminalresponsibility. The United Nations Charter itself, the Universal Declaration ofHuman Rights, the two U.N. Covenants and a series of declarations andinstruments provide the basis for what has been called the developinginternational law of human rights .Indeed Professor Keith obse rves in his paper that the extension of internationalhumanitarian law to internal conflicts builds in part on this developinginternational law of human rights . Th e human rights doctrine not only disposesof the claim that matters touching upon human rights are under a State's d omesticjurisdiction, but provides a fundamental new basis or perspective for dealingwith violent assaults on basic human rights nalysis is what internationalhumanitarian law is concerned with.Post-war developments show a convergence of parallel approaches, thecom mo n objective of which is the protection of certain basic rights of individualsagainst violent assaults, eith er by kxtern al forces or even by those in control ofthe victim's own state. At least three parallel approaches are found. Th e doctrineof individual criminal responsibility for committing crimes against humanity isdirected against such large-scale violations of basic human rights as: massmurder, enslavement and deportation. It is not without significance that it wasthe International Conference on Human Rights convened in Teheran by theUnited Nations to celebrate the twentieth anniversary of that UniversalDeclaration which identified gaps in the Geneva C onventions' framework cas t byResolution XXIII recorded as follows:(i) that the 1949 Conventions were not sufficiently broad to cover all armedconflicts and that, in particular, persons who struggle against minority racist orcolonial regimes should be protected against inhuman and brutal treatment andshould e accorded the status of prisoners of war (Preamble);(ii) that better protection should be provided for civilians, prisoners andcombatants by additional international conventions or by revision of existinginstruments (paragraph 1 b));(iii) that, pending the adoption of new rules, all States should ensure thatinhabitants and belligerents are protected in accordance with the principlesreferred to in the de Martens clause (paragraph 2).It was this perception that substantial gaps existed in the G enev a Conventions'framework of international protection of the individual against violent assaultsand his basic human rights in different types of armed conflict situations, that led
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many, including our delegation, at the Diplom atic Conference in 1974 to pressfor strengthening the Geneva Conventions' framework and making it moreeffective so that innocent men, women and children may be protected from thekind of atrocities to which our people had been exposed only a few years earlierwhile seeking to uphold their dem ocratic right to govern themselves. It does lessthan justice to the sentiment underlying the proposals for extending internationalprotection to victims of all types of armed conflicts to ascribe it, as some do , toideological predilections of the Third World, more particularly since ProfessorKeith notes that this basically hum anitarian position was praised by countries likeNorway on the grounds that victims of all armed conflicts should be entitled aliketo international protection and that human values involved are the same whetherthe conflict is international or internal (and as Professor Keith rightly 0 b s e ~ e S :indeed if anything , the threats to them may be greater in internal conflicts ).There is also a striking parallel between, on the one hand, the protectionsough t to be afforded by Article common to the Geneva Conventions when itcasts a derogation to treat protected persons humanely, without any adversedistinction founded on race, colour, religion or faith, sex, birth or wealth, andprohibits such acts in respect of them as: violence to life and person, inparticular; murder of all kinds, mutilation, cruel treatment and torture; taking ofhostages; outrages upon personal dignity, in particular, humiliating anddegrading treatment and the passing of sen tences and carrying out of executions
withou t due process of law; on the other hand the doctrine of non-derogable ornon-suspendab le rights developed in the context of the U.N . Covenants, and theEuropean Convention and the Inter-American Convention on Human Rights.Each of those instruments, in dealing with states of exception, whenconstitutional protection of human rights, often along with the Constitution, issought to be suspended on grounds of national security, have provided thatcertain core rights are in no circumstances derogable or suspendable; theseinclude the right to life, prohibition of torture and inhumane treatment,prohibition of slavery and the prohibition of retroactive application of criminallaws. The same trust is evident in the Declaration adopted by the GeneralAssembly on December 1975 condemning the act of torture or other cruel,inhum an or degrading treatment as an offence to human dignity providing inparagraph that:No State may permit or tolerate torture or cruel, inhuman or degradingtreatment or pun ishmen t. Exceptiona l circumstances such as a state of w aror threat of war, internal political instability or any other public em ergencymay not be involved as justification of torture or other cruel, inhuman ordegrading punishment.International Humanitarian Law, along with human rights law, are essentialcomponen ts of a framework for protection of individuals against violent assaultson their basic rights. Any assessment of the present state of internationalhumanitarian law would be incomplete without tracing its linkages with theinternational law of human rights, as they m ust complement and reinforce eachother, if the gaps in the existing framework are to be filled and more effectiveprotection is to be secured for individuals who are threatened by violent assaultsagainst their basic human rights.This linkage between international humanitarian law and the international law
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of human rights is of specific importance in relation to the question ofenforcement. Under the head of enforcement. Professor Keith deals with threema tters: dissem ination, reprisals (with the respectful note that the real threat ofan illegal reprisal might well be effective ), and inquiries (with the note that theDiplom atic Conference had further to agree on the estab lishment of a permanentindependent commission, with compulsory jurisdiction).I w ould like to suggest that certain other conce rted internationa l initiatives andaction could effectively contribute towards improved enforcement of internation-al humanitarian law.The following measures merit serious consideration:(i) establishing universal criminal liability for individua ls who com mit gravebreaches a nd setting up machinery for prosecu tion and trial of delinque nt
individua ls: thus those w ho order or inflict wilful killing, torture or inhumantreatmen t, including biological experiments, or similar atrocities, o r gravebreaches of the obligations prescribed by Article 3 or who are responsiblefor gross violations of the non-derogable human rights, should by analogywith pirates, criminals and aerial hijackers, be subject to trial andpunishment wherever they may be found.Indeed, with regard to war criminals, such universality of jurisdiction hasbeen recognised. The 1949 Geneva Conventions themselves place theparties under an obligation to search for and try persons alleged to havecommitted grave breaches . Under the Geneva Conventions partiesundertake to enact legislation so as to enable the imposition of effectivepenal sanctions on any persons, whatever their nationality, who are allegedto have comm itted or ordered a grave breach . The Conventions dorequire that nationa l courts be con ferred by nationa l legislation, with penaljurisdiction that is of universa l application in respect of all those who ha vecommitted grave breaches.This system of enforcing the individual criminal liability of delinquentindividuals has been testified by Articles 86 and 87 of the First Protocol.Article 86 provides for pena l responsibility of a superior authority in respectof a breach committed by a subordinate, if the superior authority knew orshould have concluded in the circumstances that the breach was being orabout to be com mitted, bu t also failed to take feasible measures to prevent orrepress its commission. Article 87 prescribes that governments shouldensure that their military com manders are instructed to prevent and suppressbreaches, and to make certain that their subordinates are aware of theirobligation under the Conventions and Protocol I. A duty is cast ongovernments to ensure that their military commanders comply with therequirements of Article 87.A significant initiative which could be mounted is to remind governments oftheir obligations under the Geneva Conventions and the First Protocol toenact necessary national legislation and discharge their obligations to searchand try delinquent individuals. The conscientious implications of thismeasure could act as a substantial deterrent to would-be delinquents inceit is the dem onstration of conspicuous indifference by sta te s parties tothe Gene va Conventions which enables delinquents to evade the dictates ofjustice, and thus provides positive encouragement to would-be delinquents.
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(ii) Simultaneously, as part of the movement for enforcement of internatinalhumanitarian law, the ratification of the UN Human Rights Covenantsshould e v~gorouslypromoted, along with ratification of regional humanrights instruments where these exist, and the establishment of suchinstruments along w ith appropriate m achinery, where these d o not at presentexist, as in the Asian and Pacific regions.(iii) Dissemination in the form of only formal instruction in the contents of theGeneva Conventions and the Additional protocols, if it is to be effective,should form part of integrated cou rses on human rights. limited approachat making international humanitarian law acceptable on the basis of somesort of threats and retaliation kind of reciprocity based on mutualthreats of retaliation by the weak against the powerful, inevitably lackedcredibility. If a new strategy is to be adopted for effective enforcement ofinternational humanitarian law and the protection of human rights w hich hasto contend against the creeping brutalisation of a world, which has learnt tolive with atrocities, to look the other way, and to cover up, what is needed toright this is not just dissemination of information, but what in thesociologist's jargon is called conscientisation revival of moralsensibility and of the public conscience, so that men may become humanagain in order to resist man's inhumanity to man.
