The United Nations and the Third Geneva Convention

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This post is part of a joint blog symposium with the Humanitarian Law and Policy Blog and Just Security exploring the new ICRC Commentary on the Third Geneva Convention. See below for other posts in the symposium.

This post discusses the role of the United Nations in ensuring respect for the Third Geneva Convention. That Convention deals with the treatment of prisoners of war in times of international armed conflict (armed conflict between States), except that Article 3 common to the four Geneva Conventions applies to non-international armed conflicts (armed conflict between State’s armed forces and armed groups or between armed groups).

The relationship between the United Nations and the Third Convention may not be so obvious.  The United Nations participated as an observer in the Diplomatic Conference of 1949 at which the Geneva Conventions were adopted, but the Geneva Conventions themselves do not refer to the United Nations, except in an article common to the Geneva Conventions concerning the registration of the Conventions with the Secretariat of the United Nations and the notification to the Secretariat of all ratifications, accessions, and denunciations with respect to those Conventions.

While the applicability of international humanitarian law to United Nations forces has been generally recognized (e.g., Secretary-General’s bulletin on the observance by United Nations forces of international humanitarian law (ST/SGB/1999/13)), the United Nations is not a party to the Third Convention and is not, therefore, bound by the Convention.  The Office of Legal Affairs of the United Nations Secretariat has also stated that the United Nations “cannot accede to the [Geneva] Conventions” (United Nations Juridical Yearbook, 1972, p. 153).

At the same time, one of the purposes of the United Nations is “to achieve international co-operation in solving international problems of … [a] humanitarian character, and in promoting and encouraging respect for human rights” (Article 1 (3)).  Today, there is no doubt that international humanitarian law has become one of the most important areas of international law that guide the work of the Organization.

Though the relationship between the United Nations and the Third Convention might not be obvious at first sight, this post will examine how the Third Convention has been relevant to various aspects of the work of the United Nations.  In particular, it will be shown how the United Nations has played a significant role in ensuring respect for the Convention and contributed to its interpretation.  In this regard, the 2020 ICRC commentary on the Third Convention will no doubt be an indispensable reference point for many in the United Nations whenever issues concerning the Third Convention arise.

The role of the General Assembly

The General Assembly has invoked the Third Convention in its resolutions in relation to a number of specific armed conflicts, such as the Middle East conflict in 1967 (resolution 2252 (ES-V)), the Afghanistan conflict in the 1980s (e.g., resolution 47/141), and the Gulf War in 1990 to 1991 (resolution 46/135), and sometimes in relation to those to which the Convention did not formally apply, such as the Second World War (e.g., resolution 741 (VIII)) and the Korean War (e.g., resolution 610 (VII)), often in order to ensure the timely release and repatriation of prisoners of war.

At a more normative level, the General Assembly played a central role in recognizing the applicability of the provisions of the Third Convention to combatants struggling against colonial and alien domination and racist régimes captured as prisoners, initially in relation to specific contexts such as South Africa (e.g., resolution 2369 (XXIII)), Southern Rhodesia (e.g., resolution 2508 (XXIV)) and Namibia (e.g., resolution 38/36), and also as a general principle (e.g., resolution 3103 (XXVIII)).  These resolutions contributed to the inclusion of Article 1 (4) in 1977 Additional Protocol I which recognized armed conflicts in the exercise of the right of self-determination as international armed conflicts.

The role of the Security Council

The Security Council’s primary responsibility is the maintenance of international peace and security, as set out in Article 24 (1) of the Charter of the United Nations.  However, as provided for in Article 24 (2) of the Charter, “[i]n discharging these duties, the Security Council shall act in accordance with the Purposes and Principles of the United Nations” which include the purpose “to achieve international co-operation in solving international problems of … [a] humanitarian character, and in promoting and encouraging respect for human rights” (Article 1 (3) of the Charter).

As far as its role in international humanitarian law matters is concerned, the Security Council has, on several occasions, specifically recalled “its primary responsibility under the Charter of the United Nations for the maintenance of international peace and security, and in this context, the need to promote respect for the rules and principles of international humanitarian law” (e.g.,  resolution 2474 (2019)).

The Council has mainly invoked the Third Convention in relation to situations under its consideration, such as the Middle East conflict in 1967 (resolution 237 (1967)), the India-Pakistan conflict in 1971 (resolution 307 (1971)), the Iran-Iraq conflict in the 1980s (resolution 598 (1987)), the conflict in Bosnia and Herzegovina in the 1990s (S/25557), and the Eritrea-Ethiopia conflict (resolution 1369 (2001)), often to ensure the timely release and repatriation of prisoners of war.

The Third Convention has also been relevant to the work of some of the subsidiary organs established by the Security Council.

The role of the International Tribunal for the former Yugoslavia (ICTY) 

The ICTY, a subsidiary organ of the Security Council, invoked the Third Convention extensively during its 24 years of existence.

Article 2 of the ICTY Statute specifically allowed the prosecution of persons committing or ordering to be committed grave breaches of the Geneva Conventions, which covered the grave breaches listed in Article 130 of the Third Convention.  Article 3 of the Statute further allowed the prosecution of persons violating the laws or customs of war, which was understood to include Article 3 common to the Geneva Conventions applicable to non-international armed conflicts.

In several cases, the Tribunal dealt with crimes committed against prisoners of war, including torture and wilfully causing great suffering or serious injury to body or health (e.g., Naletilic and Martinovic case, Mrkšić et al. case, and Prlić et al. case), and have extensively referred to the 1960 ICRC commentary on the Third Convention in those judgments.

Among the many issues that the ICTY dealt with in relation to prisoners of war, it contributed to the interpretation of Article 4 (A) (2) of the Third Convention which recognized members of militias and of volunteer corps not part of the armed forces as prisoners of war, as long as those groups were “belonging to a Party to the conflict”.

The elements to be factored in to determine whether such groups belonged to a Party to the conflict have not been clear.  The 1960 ICRC commentary on the Third Convention indicated “express authorization by the sovereign, usually in writing” or “a de facto relationship between the resistance organization and the party to international law which is in a state of war” as the relevant elements.

The ICTY, in its Tadić Appeals Judgment, noted that “[t]he authoritative ICRC Commentary does not shed much light on the matter, for it too is rather vague” and indicated “control over them [irregulars] by a Party to an international armed conflict” and “a relationship of dependence and allegiance of these irregulars vis-à-vis  that Party to the conflict” as the relevant elements.

The ICTY, however, referred to the criterion of “belonging to a Party to the conflict”, not to determine whether a person was a prisoner of war pursuant to Article 4 (A) (2), but to examine whether a State’s control over an armed group would render the armed conflict between that armed group and another State an international armed conflict.  It was in this context that the ICTY set out the “overall control” test (see Tadić Appeals Judgment, paras. 120–123, 156, and 162 for further details).

The 2020 ICRC commentary on the Third Convention (para.1005) sets out the following two elements: 1) “the group must in fact fight on behalf of that Party” and 2) “that Party must accept both the fighting role of the group and the fact that the fighting is done on its behalf.”  It further states that “[w]here a Party to a conflict has overall control over the militia, volunteer corps or organized resistance movement that has a fighting function and fights on the State’s behalf, a relationship of belonging for the purposes of Article 4A(2) exists.”  The commentary appears to take into account the developments subsequent to the 1960 commentary, namely the ICTY judgment mentioned above.

United Nations peacekeeping operations and the Third Convention

United Nations peacekeeping operations are also subsidiary organs of the Security Council (except for a few which were established by the General Assembly), but their relationship to the Third Convention is very different from the ICTY’s relationship to the Convention.

Peacekeeping operations do not engage in international armed conflicts and, therefore, a situation where their members are captured and become prisoners of war does not arise.  Most of the existing peacekeeping operations which operate in a situation where their members could potentially be captured have been deployed to situations of non-international armed conflict.  In this regard, Article 3 applicable to non-international armed conflicts is the most relevant provision of the Third Convention.  Most importantly, the ICTY, in its Karadžić case, specifically stated that members of a United Nations peacekeeping operation taking no active part in hostilities are also protected by Article 3 common to the Geneva Conventions.

The 1994 Convention on the Safety of United Nations and Associated Personnel further provides protection for captured or detained United Nations personnel who “shall be treated in accordance with universally recognized standards of human rights and the principles and spirit of the Geneva Conventions of 1949”, which would include the Third Convention.

Finally, the Secretary-General’s bulletin on the observance by United Nations forces of international humanitarian law (ST/SGB/1999/13) stipulates as follows: “The fundamental principles and rules of international humanitarian law set out in the present bulletin are applicable to United Nations forces when in situations of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement. They are accordingly applicable in enforcement actions, or in peacekeeping operations when the use of force is permitted in self-defence.” The bulletin then provides that “detained members of the armed forces and other persons who no longer take part in military operations by reason of detention…shall be treated in accordance with the relevant provisions of the Third Geneva Convention of 1949 as may be applicable to them mutatis mutandis.”

(The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations.)

See also

 

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