De l’applicabilité du droit international humanitaire aux opérations de paix : pour des approches juridiques, militaires et éthiques.

Michel Veuthey, Vice-President.

2009 San Remo Round Table

The next Round Table in Sanremo will take place September 3-5, 2009.
More details to follow soon.

Présentation du Lieutenant-Colonel Jérôme Cario

Presentation made by Lieutenant-Colonel Jérôme Cario during Working Group 2 on Peace Operations and Detention. Friday, September 5th.

Français: "La Détention dans les Opérations de Paix: Approch Pratique"

English: "Detention During Peace Operations: A Practical Approach" (translation from the original French by Amy Iberg)

Report of Working Group 3

Report of Working Group Three – Friday September 5th 2008.

Report presented by Professor Fausto Pocar , preisdent of the ICTY, Vice-President IIHL

Peace Operations and the Repression of Violations of International Humanitarian Law

Tool or Taboo?: The Relevance of the Law of Occupation to Peace Operations

Presentation by Dr. Marten Zwanenburg, Legal Advisor to the Ministry of Defence, Netherlands.

The Applicability of IHL to Peace Operations - the Perspective of the United Nations by Colonel Ben Klappe

Colonel Ben Klappe, Saturday 6th September, Plenary Session on the Applicability of International Humanitarian Law to Peace Operations.

The Perspective of the United Nations

The Applicability of Internationanl Humanitarian Law in Peace Operations - The Perspective of NATO

Presentation made by Dr. Baldwin de Vidts on the perspective of NATO
Saturday, 6th September - Plenary Session on the applicability of IHL in peace operations

Transcript from audio recording by Amy Iberg (IIHL Genève)

“Violations of IHL committed during peace operations and individual criminal responsibility”

Presentation made by Mme. Maria Telalian, Legal Adviser, Minsitry of Foreign Affairs, Greece.

Friday 5th September 2008, Working Group 4: Responsibility and compensation for damages caused during peace operations.

Peacekeeping Operations and the International Criminal Court

Presentation made by Ms. Olivia Swaak-Goldman, Office of the Prosecutor, International Criminal Court.

Peace Operations and the Complementarity of Human Rights Law and International Humanitarian Law - Professor John Cerone

Remarks of Professor John Cerone at the 31st Round Table

TheLegal Status of United Nations and Associated Personnel in Peace Operations and the Legal Regime Protecting Them

Presentation made by Dr. Ola Engdahl from the National Defence College, Sweden, on Friday September 5th.

The Copenhagen Process on the Handling of Detainees in International Military Operations

By Mr. Thomas Winkler, Acting Legal Adviser, Danish Ministry of Foreign Affairs

Theme III: Working Group 2: Peace operations and detention, Friday 5 September 2008: The Copenhagen Process on the Handling of Detainees in International Military Operations

Closing Speeches from the 2008 Round Table / Discours de Clôture de la Table-Ronde

Conclusions of the Round Table made by Dr Philip Spoerri.

Allocution de clôture de S.E L'ambassadeur Maurizio Moreno.

Opening Presentation - 1st Plenary Session, September 4th

Presentation made by Professor Michel Veuthey at First Plenary Session

The Applicability of International Humanitarian Law to Peace Opeations / L'Applicabilité de Droit International Humanitaire aux Opérations de Paix

Power Point Presentation given by Michel Veuthey
Présentation de Michel Veuthey

The Right to Detain During Peace Operations - Presentation by Bruce Oswald at 2008 Round Table in San Remo

Slideshow presentation given by Mr. Bruce Oswald, Senior Lecturer in Law at Melbourne Law School, during Working Group 1 of the Round Table on Peace Operations and Detention.

Message du Grand Maître et du Grand Chancelier de l'Ordre de Malte

Au nom de S.A.Eme. le Prince et Grand Maître de l'Ordre, Fra' Matthew Festing, qui regrette vivement de ne pouvoir participer à cette XXXIe Table Ronde, et en mon nom personnel, je voudrais adresser au Président, au membres des Conseils et à tous les participants, nos voeux de plein succès pour vos réflexions sur ce thème d'une si grande actualité,"Droit International Humanitaire, Droits de l'Homme et Opération de Paix".

L'Ordre Souverain Militaire Hospitalier de Saint-Jean de Jérusalem de Rhodes et de Malte déploie depuis neuf siècles ses activités humanitaires dans le monde. Il suit avec un vif intérêt les efforts déployés depuis 1970 par l'Institut International de Droit Humanitaire pour la promotion et le respect du droit international humanitaire. Je serais très heureux que notre collaboration puisse se poursuivre et se développer notamment dans le domaine de la formation en droit international humanitaire. Je prendrai connaissance avec la plus grande attention du résultat de vos travaux.


Jean-Pierre MAZERY
Grand Chancelier

5 IX 2008

Programme de la Table Ronde du 4 au 6 Septembre 2008

Droit international humanitaire, droits de l’homme et opérations de paix

4 - 6 septembre 2008 Sanremo, Italie

Jeudi 4 septembre

09.30-12.30 Séance d’ouverture – Salle de l’Opéra du Casino

Discours d’ouverture

Ambassadeur Maurizio Moreno, Président, Institut International de Droit Humanitaire

Messages de bienvenue

Honorable Stefania Craxi, Sous-Secrétaire d’Etat aux Affaires Etrangères, Italie
M. Marco Andracco, Vice-Maire de San Remo

Message d’ouverture

Dr. Jakob Kellenberger, Président, Comité international de la Croix Rouge

Discours

Général Vincenzo Camporini, Chef d’États-Majors, Italie
Ambassadeur Claudio Bisogniero, Secrétaire-Général adjoint, OTAN

Européenne H. E. Ambassador Raimund Kunz, Director of the Directorate for Security policy, Swiss Federal Department of Defense

S.E. Mgr Giampaolo Crepaldi, Secrétaire, Conseil Pontifical Justice et Paix

Honorable Pier Virgilio Dastoli, Chef de la Représentation en Italie de la Commission

M. Christopher Lamb, Conseiller spécial, Relations Internationales, Fédération Internationale des Sociétés Nationales de la Croix-Rouge et du Croissant-Rouge
Dr. Massimo Barra, Président, Croix-Rouge italienne

12.30-14.00 Déjeuner

14.00-18.00 Séance Plénière

Thème I : De l’applicabilité du droit international humanitaire aux opérations de paix

Modérateur : Prof. Michel Veuthey, Vice-Président, IIDH ; Professeur Associé, Institut du Droit de la Paix et du Développement, Université de Nice – Sophia Antipolis

Session 1 : Les opérations de paix, un concept opérationnel et juridique

a. L'évolution des opérations de paix, de l'interposition aux missions intégrées
Mme Corinna Kuhl, Chef, Section des Meilleures Pratiques, Nations Unies

b. Le cadre juridique des opérations de paix, du chapitre VI au chapitre VIII de la Charte des Nations Unies
Prof. Louis Balmond, Professeur, Université de Nice – Sophia Antipolis


Session 2 : L'applicabilité du droit international humanitaire aux opérations de paix, une question réglée?

a. L'applicabilité du droit international humanitaire aux opérations de paix, de la négation vers l'acceptation
Dr. Daphna Shraga, Administratrice generale, Bureau du Conseiller juridique, Bureau des affaires juridiques, Nations Unies

b. Droit international humanitaire et opérations de paix, champ d'application rationae materiae
Prof. Marco Sassoli, Université de Genève

c. Le droit international humanitaire et les opérations menées par l’Union Européenne
M. Gert–Jan Van Hegelsom, Conseiller juridique, Conseil de l’Union Européenne

19.30 Concert pour la paix – Villa Ormond

20.30 Réception – Villa Ormond


Vendredi 5 septembre

09.00-12.30 Séance plénière

Thème II : De l’applicabilité du droit international humanitaire aux opérations de paix : problématiques particulières

Modérateur : Prof. Nicolas Michel, ancien Secrétaire-Général Adjoint pour les Affaires juridiques et Conseiller juridique, Nations Unies

Session introductive : L'interaction des régimes juridiques dans le cadre des opérations de paix

a. Les opérations de paix et la complémentarité des droits de l'homme et du droit international humanitaire
Prof. John P. Cerone, Professeur associé et Directeur, Centre for international law and policy, New England School of Law

b. Le statut juridique du personnel des Nations Unies et du personnel associé déployés dans le cadre des opérations de paix et le régime juridique les protégeant
Dr. Ola Engdahl, National Defence College, Suède


Session 1 : Le droit de l'occupation, un corpus juris pertinent pour les opérations de paix

a. L'applicabilité du droit de l'occupation aux forces de paix
Dr. Tristan Ferraro, Conseiller juridique, CICR

b. La pertinence substantielle du droit de l'occupation pour les opérations de paix
Dr. Marten Zwanenburg, Conseiller juridique, Ministère de la Défense, Pays-Bas


Session 2 : Le DIH et l'administration de territoires par les Nations Unies

a. L'administration de territoires par les Nations Unies, une place pour le droit international humanitaire ?

Prof. Steven Ratner, Faculté de Droit, Université du Michigan

b. L’administration internationale de territoires en tant que « tutelles » - pourquoi un système de responsabilité est nécessaire et pourquoi il n’a pas encore été institué
Dr. Ralph Wilde, Faculté de Droit, University College London

12.00-14.00 Déjeuner

14.00-19.00 Séances Parallèles

Thème III La mise en œuvre du DIH dans le cadre des opérations de paix

Groupe de Travail 1 : Les opérations de paix et la protection des civils

Modérateur : Prof. Mario Bettati, Représentant Spécial du Ministre des Affaires Étrangères, France ; Membre du Conseil, IIDH

a. La responsabilité de protéger : introduction
Prof. Edoardo Greppi, Professeur de Droit International, Université de Turin

b. La protection des civils dans le cadre des opérations de paix ou l'opérationnalisation de la "responsabilité de protéger"
M. Gareth Evans, Président, International Crisis Group

c. La responsabilité de protéger et le droit international humanitaire
Prof. Michael Bothe, Université de Goethe, Frankfurt/Main, Germany

Groupe de Travail 2 : Les opérations de paix et la question de la détention

Modérateur : Dr. Baldwin de Vidts, Conseiller juridique auprès du Secrétaire-Général, OTAN; Vice-Président, IIDH

a. Le droit de détenir pendant les opérations de paix : problèmes légaux et opérationnels
M. Bruce Oswald, Senior Lecturer in Law, Melbourne Law School

b. Le cadre juridique de la détention administrative
Mme Jelena Pejic, Conseillère juridique, CICR

c. La détention dans le cadre des opérations de paix, une perspective pratique
Lieutenant-Colonel Jérôme Cario, Ministère de la Défense, France

d. Le processus de Copenhague sur le traitement des détenus dans les opérations militaires internationales
Mr. Thomas Winkler, Conseiller juridique, Ministère des Affaires étrangères, Danemark.

e. Le traitement des détenus dans le cadre des opérations militaires internationales
Prof. Giorgio Bosco, ministre plénipotentiaire, unité pour les contentieux diplomatiques et les traités, Secrétariat général, Ministère des Affaires étrangères, Rome.

Groupe de Travail 3 : Les opérations de paix et la répression des violations du droit international humanitaire

Modérateur : Prof. Fausto Pocar, Président du Tribunal Pénal International pour l’ex-Yougoslavie, La Haye; Vice-Président, IIDH

a. Le rôle des forces de paix dans la recherche des personnes prévenues pour crimes de guerre
Prof. Theodor Meron, Professeur de Droit International ; ancien Président, TPIY ; Juge, Chambre d’Appel, Tribunal Pénal International pour l’ex-Yougoslavie, La Haye

b. La question de la collaboration des forces de paix avec la Cour Pénale Internationale
Mme Olivia Swaak-Goldman, Conseillère en Coopération Internationale, Division de la Compétence, de la Complémentarité et de la Coopération, Bureau du Procureur, CPI

c. La prévention et la constatation des violations du droit international humanitaire
Prof. William H. Taft IV, Professeur, Université de Stanford ; Membre du Conseil, IIDH

Groupe de Travail 4 : La responsabilité et les compensations pour les dommages causés dans le cadre des opérations de paix

Modérateur : Mme Elinor Hammarskjöld, Directrice, Département du Droit International et des Droits de l’Homme, Ministère des Affaires Étrangères, Suède

a. Commandement opérationnel contre commandement organique, qui est en charge?
Vice-Amiral Ferdinando Sanfelice di Monteforte, ex-Représentant militaire de l’Italie auprès de l’Union Européenne et de l’OTAN ; Professeur de Stratégie militaire

b. Violations du DIH commises dans le cadre d'une opération de paix, à qui incombe la responsabilité internationale?
Prof. Pierre Klein, Professeur de Droit International, Université Libre de Bruxelles

c. Violations du droit international humanitaire dans le cadre d’opérations de paix et responsabilité pénale individuelle
Mme Maria Telalian, Conseillère Juridique, Ministère des Affaires Étrangères, Grèce

17.00 – 19.00 Séance Plénière

Les relations entre organisations humanitaires et forces de paix

Modérateur : Mme Ndioro Ndiaye, Directeur Général Adjoint, Organisation Internationale pour les Migrations (OIM) ; Membre du Conseil, IIDH

a. La dimension opérationnelle de la problématique
Dr. Denis Caillaux, Représentant spécial, Mouvement Mondial en faveur des enfants ; Ancien Secrétaire Général, CARE International

b. Le cadre juridique des relations "civilo-militaires" et l'apport du DIH
Prof. Dr. Wolff Hentschell von Heinegg, Université de Viadrina, Frankfurt/Oder

c. Le rôle des Sociétés Nationales de la Croix-Rouge et du Croissant-Rouge
Mme Fatima Gaillani, Secrétaire-Generale, Croissant-Rouge afghan

d. La médiatisation des opérations de paix sert-elle le respect du DIH ?
Ambassadeur Benoît d'Aboville, ancien Représentant Permanent de la France à l’OTAN ; Conseiller Maître, Cour des Comptes ; membre de la Commission du Livre Blanc français sur la Défense et la Sécurité Nationale

20.30 Dîner officiel – Hôtel Londra

Samedi 6 septembre

09.00-10.15 Rapports des groupes de travail sur l’applicabilité du DIH aux opérations de paix

10.30-12.00 Séance plénière

Enseignement, diffusion et mise en oeuvre du droit international humanitaire dans le cadre des opérations de paix

Modérateur : Juge Hisashi Owada, Cour Internationale de Justice

a. Introduction générale
Brigadier Général Erwin Dahinden, Chef des Relations Internationales, Ministère de la Défense, Suisse ; Membre du Conseil, IIDH

b. La perspective du Comité international de la Croix Rouge
Prof. Jacques Forster, Membre, Comité international de la Croix Rouge ; Membre du Conseil, IIDH

c. La perspective des Nations Unies
Colonel Ben Klappe, Juge, Cour Militaire d’Arnhem, Armée Royale des Pays-Bas ; ancien assistant particulier du Conseiller militaire, Nations Unies

d. La perspective de l’OTAN
Dr. Baldwin de Vidts, Conseiller juridique auprès du Secrétaire-Général, OTAN ; Vice-Président, IIDH

e. La perspective de l’Union Européenne
M. Frederik Naert, Conseiller juridique, Service juridique, Union Européenne

12.00-13.00 Conclusions de la Table Ronde

Résumé et conclusions

Dr. Philip Spoerri, Directeur du droit international et des relations avec le Mouvement, CICR

Allocution de clôture

Ambassadeur Maurizio Moreno, Président, Institut International de Droit Humanitaire

Coordinateurs de la Table Ronde : Prof. Michel VEUTHEY, Vice-Président, IIHL.
Dr. Tristan Ferraro, Conseiller juridique, CICR.

Information - ENGLISH - ITALIANO - FRANCAIS

Presentation made by Jérôme Cario - English Translation

Translated by Amy Iberg from French Original

Detention during peace operations – a practical approach
Lieutenant-colonel Jérôme CARIO

Legal Advisor, Ministry of Defence, France
Chief of Research Office

"More and more often, our armies intervene in complex situations in which positive laws do not always give all the answers. Military ethics and professionalism thus become fundamental in decision-making. Military ethics are primarily a question of culture but also of experience. Here we come to the heart of what makes up an army. There is a duty to teach the rules of conduct to all. At the same time, there is the responsibility to forge strong consciences within individuals. (…) There can be no compromise in the values of an army; its ethics are not flexible, but are the cornerstone of every soldier’s conscience and actions.”
Mme Michèle Alliot-Marie, former minister of Defence, France.


Introduction

The Geneva Conventions of 1949 make up the core of contemporary international law and hold the respect for the individual at the centre of their values. The respect for prisoners of war and captured persons, however, dates back well before the drafting of these modern instruments. The inhuman and odious phenomenon of warfare has occurred in every age known to man; ever since humans have existed, war has existed; ever since war has existed, human beings have sought to limit its consequences. Indeed, we must point out the attempts to limit the conduct of warfare that have been inspired by charity and humanity.

The laws of armed conflict have always been based upon the distinction between combatants and non-combatants. Only combatants have the right to take part in conflict and may be attacked. Civilians may not take part in hostilities; providing they do not, civilians may not be the object of attack.

Once captured, a combatant may not be punished for having taken up arms and for having taken the life of other combatants. As a prisoner of war, a combatant may be detained, not for punishment, but for the sole aim of preventing him or her from being able to return to participate in military operations.

The situation is fundamentally different for a civilian who ‘irregularly’ takes part in combat situations. Such an act by a civilian is not justified. In taking the life of another, he or she is committing a crime – voluntary homicide, or murder – and may be punished for this act by the most severe punishments of the penal code. Further, he or she will not benefit from the privileged status reserved for prisoners ‘of war’ but will be treated as a criminal under ordinary penal law.

When doubt arises regarding the status of a civilian bearing arms who claims to be the member of a resistance, guerilla or rebel movement, that person must be afforded the treatment of a prisoner of war until a competent tribunal decides upon their true status.

Notwithstanding, the norms that a state adopts in its treatment of detained persons are indicative of its civilisation and of its humanity which are exposed for all to see.


i. The Framework In Which Armed Forces are Used

First of all I’d like to return to the political-judicial scope of the deployment of armed forces today. Operations that take place in the “stabilization” phase, in which armed forces are involved, take place in a situation of war that is not declared in the legal sense of the term. However, very often the resolutions adopted by the Security Council are made using Chapter VII of the UN Charter. In other words, these Security Council resolutions authorize the use of force in peace enforcement of peace-building missions.

Thus, the use of force that is used in a situation of ‘judicial’ peace, with both periods of armed conflict and periods of peace, must be in conformity with the application of regular and adapted rules on the treatment of captured person in order to avoid any breach or exaction of those rules.

Any “armed force” – whether an official State army, a regular army of a government that is not recognized by the adversary, or a resistance, guerilla, rebel or militia movement – must satisfy the same four conditions for their members to be immune from being punished for bearing arms in the case of capture. They must:
- be a member of a military organisation;
- be under responsible command;
- respect the rules of the law of armed conflict;
- distinguish themselves from the civilian population.

* Being a member of a military organisation:
The units must have a military structure and organisation. This implies the need for a hierarchy and effective disciplinary measures.
Disorganized and civilian groups that are constituted on an irregular basis will not be afforded the status of combatants. Similarly, a civilian who individually commits acts of warfare, sabotage or antagonism against the enemy will not benefit from the protection of combatant status.

* Being under responsible command
Every armed force must be placed under a command responsible for the acts of its subordinates before the government or other political authority (provisional government, government in exile, the authority of a liberation movement etc.).
It matters little whether or not this authority is officially recognized by the adversary. The essential thing is that members of armed forces are accountable before a political or judicial authority for acts which are contrary to the laws of armed conflict and, more specifically, contrary to the rules governing the limitations of the means and methods of warfare.

* Respect for the rules and customs of war
This military command must ensure the respect of the principles of armed conflict. An isolated violation of one of these principles by one or more combatants is not in itself enough to indicate a failure of the general obligations of the entire force. This would be the case if a war crime is committed by a member of an organised resistance group. A single act of misconduct committed during a large number of operations and over a long period will not result in all members of the movement losing their combatant status.

It is necessary to highlight the fact that a combatant, even after breaching a rule of war, will nevertheless retain his or her status of prisoner of war if captured. He or she will certainly be pursued for the war crime committed. Some States take a more restrictive view of this issue.

Indeed, since the ratification of the Geneva Conventions, different countries have declared that a combatant, even when regular and recognized, who commits a war crime will not benefit from the privileged status afforded to prisoners during their trial and the carrying out of their punishment: the right to have contact with the outside world; the right to receive aid; the right to a fair defence; the right of the ICRC to intervene as a protecting power; the right to assistance in defence, interpreters, witnesses etc. Such States therefore the same legal regime to war criminals as would be applied to persons condemned for a crime under the regular common law of the country.

* Distinguishing from the civilian population
Armed forces, whether they be regular or irregular, are obliged to distinguish themselves as clearly as possible from the civilian population. In practice this generally means wearing a uniform for the “classic” armed forces, or, for resistance or liberation movements, a distinctive fixed sign that is recognizable from a distance.

Wearing a distinctive sign or uniform cannot always be permanent, for example, in occupied territory. Nevertheless, combatants are required to distinguish themselves from the civilian population for such time as they are taking part in an attack or during the military operations leading up to an attack.

This brings to mind certain guerilla actions in occupied territories, ambushes, sabotage, road combat, fighting in vegetation etc. In some extreme cases, there are situations where, by reason of the nature of hostilities such as urban or sabotage or guerilla warfare, an armed combatant is unable to distinguish himself or herself from the civilian population. In these conditions, combatants are obliged to carry their arms openly during every military engagement and during all military operations prior to an attack in which they are participating when they exposed to the view of the adversary.

Some would argue that arms must be worn openly from the moment they are put in use. The extent of this obligation takes into account the particular circumstances of each case. The general principle is always the necessity to avoid mixing combatants with the civilian population. Unfortunately, the failure to comply with this obligation of distinction from the population is a method that is often used.

In any case, contrary to what is often argued, the text of the first protocol which deals with armed groups does not in any respect grant the status of combatant to those who commit acts of “terrorism”. The protection afforded by the first protocol to certain guerilla movements and resistance armies only applies in situations of armed conflict between States or within States. Violence of a terrorist nature does not fall under this protection.

Those who commit terrorist acts inspire terror within populations by using violence against civilians who are completely removed from the terrorist motives. These actions reside at the outer extremities of armed conflicts.

The law of armed conflicts prohibits, even in the case of reprisals, any sort of attack against the civilian population and, in particular, prohibits the use of terror as a method of warfare. The first protocol is very clear on this subject.[1] To benefit from combatant status and therefore acquire the status of prisoner of war upon capture, all persons who take part in combat operations must be part of a structured organisation before being able to respect the rules of the law of armed conflict. This is not the case with those who commit terrorist acts as they are subject to the criminal law of the territory in which they committed the crimes.


II. Persons captured during peacekeeping operations or peacebuilding operations

Persons who surrender to armed forces during an operational engagement or during hostilities become prisoners in the sense of the Geneva Conventions. Conversely, “civilians” who oppose missions conducted by the armed forces may be “captured” in the course of the operation. These persons are then put detained or held but only if the rules of engagement so permit. The host State is responsible for protecting, controlling and caring for these persons. When such a host State does not exist or it is in the hands of adversaries, responsible protecting forces take on the responsibility for these individuals. Additionally, the classification of captured persons means that the forces will adopt a strictly regulated system.

The term ‘captured’ includes several categories of persons. Prisoners are generally treated in a consistent and uniform manner. The only real exception to this is during interrogation. On the contrary, captured persons may be treated differently depending upon the reasons for their arrest. The need to treat certain captured persons differently does not mean that different norms will apply. Whether the person is guarded by the armed forces or is handed over to the civilian police, they must at all times be treated in conformity with the norms established for prisoners in the Third Geneva Convention.

Five categories of prisoners can be defined: [2]
- Category 1: Belligerents, including civilian armies, who take part in hostilities, demonstrate hostile intentions or oppose in another manner the action of friendly forces during operations.
- Category 2: Belligerents or non-belligerents suspected of having committed war crimes, crimes against humanity or other grave violations of humanitarian law and human rights law.
- Category 3: Non-belligerents who commit acts of aggression against friendly forces, who attempt to steal or pillage protected objects or property of friendly forces, or who commit grave infringements as defined by the commander of the force.
- Category 4: Non-belligerents who, without authorization, enter or attempt to enter zones controlled by friendly forces or who oppose the progression of friendly forces by manifestations, riots or other hostile methods.
- Category 5: Non-belligerents held for reasons of security who are not suspected of criminal activities.


III. – The responsibilité of the command over captured persons

While we must remain aware of the “legalism” of operations, we must also not lose sight of the ambit of action. Naturally, this must be taken into account by the military in the planning phase as well as during the conduct of operations. Even if the situations of armed conflict are not wars, neither legally speaking nor in degree of intensity, it is necessary to specify that the savoir-faire and the savoir-être of the military are, for the large part, still identical, and inspired – individually or collectively – by international humanitarian law, the respect for individuals and, in particular, the application of the Third Geneva Convention. Simply speaking, the situations in which French soldiers are currently involved are complex, where the enemy of one day becomes the ally of the next.

This implies that we must be more demanding as to what should be done : firstly, demands placed upon ourselves; equally, demands from our leaders (the clarity of orders, stepping back when necessary) and demands towards our subordinates (understanding, application and execution).
This means:
- Control of the force is always the mark of a real soldier. In particular one must never let hate and violence govern one’s actions;
- Know how to care, capture, tolerate, provide for and respect the enemy;
- To manage one’s subordinates after a skirmish;
- To support the morale of subordinates;
- To reassure the population;
- To manage the tensions of the situation.

It is the responsibility of the military leader on the ground who conducts the action to instill these fundamental principles in his or her troops in men and to make them applicable in each particular circumstance regardless of the complex and diverse difficulties that are linked to the situation. One thing, however, remains: the chief of operations, whatever his or her rank, must make decisions and often in situations of urgency. This obviously entails risks, but also represents the importance of the job which is, afterall, more than just a job.

The actions carried out must be legally irreproachable: liberation, interrogation and detention are, of course, conducted in a military manner but must nevertheless possess an irrefutable and recognizable judicial base. Detention and internment are not synonyms, nor are the terms “captured persons” and “prisoners of war”. Nevertheless, this does not change anything substantial in the treatment that must be afforded by the French military. This necessary result, which is in conformity with both national law and international humanitarian law certainly gives immediate “moral force” to the decision-maker on the ground and also makes his or her decisions seem all the more legitimate. It is not only so that following combat action or the treatment of prisoners will be more straightforward. It is also necessary to determine the history of events and to know who did what before discriminating between captured persons. In determining between persons there is a choice, a responsibility: why free one detained person and hand over another?

Who guarantees that the population will not find such a “freed” person in one month and then massacre them? Who can say that the forces will not hand over this poor soul to what is probably a very strict governmental justice…?

And yet, it is indeed the military chief who is ultimately in charge of making such decisions. Taking into account conscience, culture and military rules, it is the military chief who “says” the law and who “is” the law. In other words, “the law does not always have last word”. In this respect the military chief is something of an “ambassador of values”, humanists as it happens. Taking a moral stance, this means a choice between the “absolute good and the absolute rule”, being theoretically the ideal choice, and the will to “strive towards the good”. This is the reality of a military chief on the ground.

- Treatment of a captured person or of a prisoner.
The issue of whether a person is a “prisoner” must be taken into consideration by every tier of commandment and in every aspect of the process of planning and it is regarding conduct that the commander holds the greatest responsibility. In fact, it is his or her duty to respect and to ensure respect for the rules in operations. To respond to these demands, the commander must know what his or her exact responsibilities are as regards captured persons or prisoners under their control.

The principle responsibilities of the commander towards captured persons are the following:
· every member of the armed forces must conform to the rules of the Geneva Conventions and the First Additional Protocol;
· the prisoners and the detainees who are captured by force must be treated in conformity with the rules of international humanitarian law and with the limitations of the rules of engagement.
· an organisation on the treatement of prisoners must be created with the necessary supplies and of a size corresponding to the expected or possible number of prisoners.
· prisoners must be evacuated as soon as possible from combat zones without being exposed to danger during the lead-up to evacuation.
Although it is the commander who holds responsibility for the overall treatment of prisoners, he or she must delegate certain aspects of procedural responsibility to subordinates. This principle applies at all levels.

Conclusion

Today, one may ask what remains of importance as regards the rules relating to prisoners of war. Indeed, these rules only exist because the combatant accepts the risk of being killed. This risk is real as combatants must distinguish themselves from civilians. It is not enough to simply say one is a combatant, he or she must also visibly be a combatant. This is, in any case, what is anticipated in the rules of the Third Geneva Convention.

Even if the evolution of armed conflicts has influenced the evolution of these rules, this does not change the fact that this visible distinction must be effective at least during every military engagement and during the period immediately preceding an attack.

This requirement is one of the conditions that permits a combatant to benefit from prisoner of war status. The other fundamental and primary condition is that the armed conflict be international. These two requirements significantly limit the situations in which the Third Geneva Convention will be applicable. Indeed, the vast majority of contemporary armed conflicts take the form of internal armed conflicts. In other words, most conflicts now take place in the territory of one sole State between the regular armed forces and dissident armed forces or between two or more dissident forces. For such conflicts, States clearly do not wish to be obliged to respect the protected status of individuals who have taken up arms against the regular armed forces and, instead, consider them to be criminals.

During non-international armed conflicts, detained persons nevertheless remain under the ambit of article 3 common to the four Geneva Conventions and of the second protocol additional to the Geneva Conventions.

This “mini-convention” spells out the minimum guaranties on the treatment of detained persons. Even during the rare cases of international armed conflicts, the application of the Third Geneva Convention is undermined. The notions of “terrorists” and “unlawful combatants” are invoked in order to deny persons the benefit of protected status. But this goes against the very rules of the Third Geneva Convention. If prisoner of war status is contested, the rules nevertheless apply until a competent tribunal is established. If prisoner of war status is refused by such a tribunal, these persons do not fall into a grey-zone in which humanitarian law no longer applies but fall instead under the protection of the Fourth Geneva Convention relating to the civilian population.

It is therefore essential to reaffirm the applicability of these rules and to come up with an exact interpretation. Given the occurrence of new forms of conflict, it is equally feasible that these rules will be questioned in the future. Until now, however, there is nothing to indicate that the current judicial system (being the Geneva Conventions and national and international legislation) can not deal with even the most complex situations.

And if the forces are not able to hand apprehended individuals to local judicial authorities, it is absolutely necessary that a “competent tribunal” is established which is recognized and accepted both by the States which make up the multinational Force and by the host State. This is a political responsibility that the military commander must absolutely fulfil either at the international level or at the national level.

After all, it is only by way of a precise knowledge of the rules pertaining to captured persons and the political and military will to apply them that crimes and homicides may be avoided.


“…Those who think that the laws of armed conflicts should be a subject for deliberation while action itself attaches to concrete realities are extremely misguided and are following the wrong path.”
General of the army, Bruno CUCHE, formally CEMAT.



Translated from French to English by Amy Iberg (International Institute of Humanitarian Law, Geneva).
[1] It can be seen that non-conventional combatants authorise anything that is, justifiably and formally, envisaged and prohibited by the conventions relative to the conduct of hostilities in armed conflicts (jus in bello). Thus, the law of armed conflict takes into account the quasi-totality of acts of war that these perpetrators of violence commit against their victims:
- the obligation to distance military objectives from populated areas (Geneva Convention III, (GCIII));
- unlawful attacks on civilian property (Art 52 of API)
- direct unlawful attacks on civilians (articles 48 and 51 of API)
- the unlawful use of non-combatants to protect military objectives;
- unlawful indiscriminate attacks;
- unlawful attacks on undefended areas (art 59 §1 API)
- unlawful attacks on neutral, demilitarized and/or safety zones (arts 14 & 15 of GCIV and 23 GCI);
- unlawful attacks against objects necessary for the survival of the civilian population, cultural property and places of worship (arts 53 & 54 API);
- unlawful attacks against the natural environment (art 55 API)
- unlawful recruitment of children
- unlawful attacks upon works and installations containing dangerous forces.
[2] Categories listed in the joint doctrine manuel of the National Defence of Canada. Treatment of prisoners of wars and detained persons. Interrogations and interpellations during international operations / J7 doc4/du 01/08/2004.

Remarks of Professor John Cerone at the 31st San Remo Round Table on Current Problems of International Humanitarian Law

Topic: Peace operations and the complementarity of human rights law and international humanitarian law


I. Introduction

On February 3, 2000, chaos erupted in Mitrovica, Kosovo. Following the bombing of a local café, mass civil unrest erupted in the city. The UN Police and KFOR, the NATO peacekeepers deployed in Kosovo, were completely unprepared as mobs rampaged through the streets.

A number of ethnically-motivated attacks were carried out in the course of the rioting. Unidentified perpetrators threw grenades into homes and gunned down individuals attempting to flee. Many other homes and vehicles were torched. At least eight people were killed that night and dozens more were severely injured. While there was a great deal of chaos, with several unruly mobs roaming the streets, the door-to-door killings were carried out systematically, evincing a planned attack.

Where was KFOR? When the fighting broke out, those soldiers who were present at the scene withdrew to their base and provided no assistance to the UN Police who were trying to extract the wounded and vulnerable. No KFOR reinforcements arrived.

As a human rights officer working under the auspices of the UN Interim Administration Mission in Kosovo, I was confronted with a number of legal issues relating to the violence. One particularly difficult question was whether KFOR had a duty to protect individuals from violent acts committed by third parties. Underlying this question were a number of complex legal issues, including the interaction of human rights law and humanitarian law in a peacekeeping context, the question of responsibility in the context of multilateral operations, and the extent to which human rights obligations applied beyond a state’s sovereign territory.

This paper focuses on the analysis of these issues in the context of obligations of troop contributing or sending states.


II. Simultaneous Application of Human Rights Law & Humanitarian Law

For much of the Twentieth Century it remained unclear whether human rights law would apply to a state’s conduct during armed conflict or occupation. Despite continuing objections on the part of a handful of states, a consensus is evolving in favor of the view that human rights law applies alongside humanitarian law in times of armed conflict or occupation.

As stated by the International Court of Justice (ICJ) in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons: “The Court observes that the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency.” In a subsequent opinion, the ICJ noted further: “[T]here are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.”

While the jurisprudence of the ICJ and other international bodies has shed some light on this relationship, much remains to be clarified in terms of how this complementarity is to be operationalized. However, for present purposes, it suffices to note that it is now increasingly clear that human rights law does not cease to apply by reason of the inception of state of armed conflict.


III. Attribution of Conduct in the Context of Multilateral Operations

Notwithstanding the significant expansion of international law in the past century, the principal subject of international law remains the state. Human rights treaties, such as the ICCPR, place responsibility for ‘respecting and ensuring’ human rights squarely upon states parties. Thus, only conduct attributable to the state can constitute an internationally wrongful act under these treaties, and only the state can be held responsible on the international plane for such violations. While certain norms of humanitarian law are now regarded as being addressed to individuals, this remains exceptional. While the breach of any rule of humanitarian law may give rise to state responsibility, individual responsibility arises only in response to certain serious breaches.

At the same time, states are abstract entities, incapable of acting as such. The conduct of states is the conduct of individuals whose acts or omissions are attributable to the state. As such, the issue of attribution must be addressed.

As an initial matter, it is important to bear in mind that the question of whether an actor’s conduct is attributable to a state is analytically distinct from the question of whether that conduct is internationally wrongful. The rules of attribution form part of the law of state responsibility. These rules are of a framework nature and are thus unconcerned with the separate question of whether the conduct at issue conforms to what is required by substantive norms of international law.

The first rule of attribution is that the conduct of an organ of a state, including that of any individual who is an official part of the machinery of the state, or of an entity legally empowered by a state to exercise elements of governmental authority is considered to be an act of that state. This would also include situations in which an organ is placed at the disposal of a state by another state and the organ is acting in the exercise of elements of the governmental authority of the former state. The conduct of such actors is attributable to the state even where an actor’s conduct is ultra vires, or beyond the scope of his or her authority, so long as he or she was acting in an official capacity.

Attribution in the Context of Collective Action

While the lines of responsibility are relatively clear when states act in an individual capacity, the issue of attribution becomes more complex in the context of collective action, particularly in light of the range of circumstances in which states may conduct collective operations.

States may simply deploy military forces jointly or through “coalitions of the willing”, which may or may not have separate legal personality. They may also contribute troops to UN or NATO forces in which operations are under the command and control of these organizations. Or they may deploy forces together with other states acting pursuant to a UN mandate, while retaining command and control. In these situations, chains of command may or may not be unified, states may or may not retain control over their contributed troops, and the lines of attribution may be muddled as a result.

Given this complex array of possibilities, the issue of attribution must be assessed in light of the particular features of each operation. In general, the conduct of a state’s military forces will be attributable to that state while those forces are acting in their national capacity. However, if troops are fully seconded to an intergovernmental organization, or another entity with separate international legal personality, such that they are acting on behalf of that organization or entity and are no longer acting on behalf of their state of nationality, then their conduct may no longer be attributable to their state of nationality.

In reality, the sending states of troops contributed to UN or regional peace-keeping operations retain a significant degree of control over their troops. In such situations, the precise scope of the troops’ national capacity versus their intergovernmental peacekeeping capacity may be difficult to delineate. Indeed, it may be possible that the troops are operating in both capacities simultaneously, in which case their conduct may be attributable to their sending state as well as to the intergovernmental organization through which they have been deployed.

This latter approach appears to be embraced by the rules of attribution set forth in the ILC’s Draft Articles on the Responsibility of International Organizations. Article 5 contemplates situations in which seconded personnel are under the effective, though not necessarily exclusive, control of an international organization. In such cases their conduct is attributable to the organization. Article 5 does not comtemplate full secondment, in which situation the seconded personnel would be under the exclusive control of the organization. Such situations are governed by Article 4 of the Draft Articles, dealing with agents of the organization. The ILC commentary indicates that Article 5 applies in situations where the conduct of the contributed personnel would likely remain attributable to the sending state, notwithstanding the simultaneous attribution of the same conduct to the organization. Assuming the minimum level of control is met to satisfy Article 5, the relative degrees of control, as between state and international organization, do not go to the question of attribution, but to the apportionment of responsibility (e.g. proportion of compensation to be paid by each).

Attribution of the Conduct of Non-state Actors

The conduct of non-state actors may also be attributed to a state under certain circumstances. The conduct of a non-state actor may be imputed to a state when the actor is in fact acting on the instructions of, or under the direction or control of, a state in carrying out the conduct; when the actor is exercising elements of governmental authority in the absence or default of official authorities; when the conduct is subsequently adopted by a state; or when the conduct is that of an insurrectional movement that becomes the new government of a state.

These standards establish a fairly high threshold of state involvement or, alternatively, de facto state action by non-state actors accompanied by state authorization or disengagement. Instances of simple complicity of state organs in the conduct of non-state actors are not sufficient to render such conduct attributable to the state under the traditional rules of attribution.

However, the law of state responsibility admits the possibility of lex specialis where ‘special rules of international law’ may govern. Special rules may be evolving through the practice of universal and regional human rights mechanisms. These institutions have increasingly found degrees of state involvement not rising to the level established for attribution under the Articles to be sufficient to render the state responsible for the acts of non-state actors. Indeed, a growing corpus of international human rights jurisprudence and practice supports the proposition that the conduct of non-state actors may be attributable to the state where state actors are complicit in such conduct.

Caveat: Positive Obligations and the Attribution of Omission

As noted above, the question of attribution is in principle separate from the content of international obligations. However, this distinction may become difficult to discern in the context of a failure of a state to fulfill positive obligations in relation to the acts of non-state actors. In such situations, it is essential to distinguish between whether the conduct of non-state actors is attributable to a state and the separate question of whether a state has failed to fulfill an affirmative obligation, should one be imposed by a primary rule of international law, in relation to the conduct of non-state actors.

The attribution of conduct consisting of omissions presents conceptual difficulties in part because conduct consisting of omissions is, in a sense, always attributable. As omission is a lack of action, an actor is not required. Hence, the state is essentially in a constant state of omission. However, in order for an omission to constitute a basis of responsibility, there must be a duty to act. The question of establishing a duty to act will turn on the content of the relevant primary rule. Thus, in these circumstances, the issue of attribution collapses into the content of the primary rule.

The Behrami Judgment

The Behrami judgment of the European Court of Human Rights misapplies these rules in several ways. Most significantly, the Court concluded that because it had found the conduct at issue attributable to the UN, it could not be attributable to the sending state. It thus failed to recognize that the same conduct may be attributable both to an international organization and to a sending state. Another defect in the Court’s approach is its formulating the primary issue as one of attribution instead of addressing the antecedent question of the existence of a positive obligation on the part of the Respondent State operating in an extraterritorial context.


IV. Extraterritorial Application

International Humanitarian Law

Unlike human rights law, the law of armed conflict was designed to apply primarily in an inter-state context. Thus, the vast majority of its provisions would clearly apply to a state’s extraterritorial conduct, specifically in the territory of the opposing state.

However, peace operations usually do not entail armed conflicts with states. Typically, where peacekeepers are engaged in armed conflict, the opposing party or parties are non-state organized, armed groups. Such conflicts are thus not governed by the law of international (i.e., interstate) armed conflict. But do they fall within the scope of the rules of humanitarian law that were developed to regulate non-international (i.e., non-inter-state) armed conflict, the central case of which would be internal armed conflict?

Recently, controversy arose as to whether Common Article 3 applied only to internal conflicts. Until recently, the US Government had taken the position that common article 3 could not apply to its conflict with Al-Qaeda, as this conflict was transnational in nature. It focused on the phrase “occurring in the territory of one of the High Contracting Parties,” arguing that the plain meaning of this language would limit the application of Common Article 3 to internal conflicts.

This was, of course, contrary to the position of the International Court of Justice that the rules of common article 3 “constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court’s opinion, reflect what the Court in 1949 called ‘elementary considerations of humanity.’”

Since the US Supreme Court ruling in Hamdan v. Rumsfeld, the US Government has accepted application of common article 3 in transnational conflicts. There now seems to be a general consensus supporting the proposition that the law of non-international armed conflict applies extraterritorially.

As noted above, demonstrating the applicability of humanitarian law outside of a state’s territory is facilitated by the fact that the bulk of the law of armed conflict was designed to apply in an interstate context, presupposing that states would be acting on each other’s territory. That some of these rules are now deemed to apply even in an internal setting does not lessen the presumption that they will still apply extraterritorially, at least insofar as they consist of prohibitions and do not purport to impose obligations on third states.

The situation is more complex under human rights law, which was not primarily designed to apply extraterritorially

International Human Rights Law

Most of the jurisprudence of human rights bodies, which have greatly elaborated on the content of states' obligations under various human rights treaties, has been developed in the context of alleged violations committed on the territory of the respective state party. Can these same standards be transposed onto the state's conduct abroad?

When I first began examining this question, I was working in the UNMIK Regional Center in Mitrovica, Kosovo. Though I was fortunate to have a copy of Professor Meron’s article on the subject, accessing relevant judicial decisions was extremely difficult. In any event, there was very little to be found. The few international decisions that had analyszed this issue had employed an approach that was unsatisfactory on a number of levels. Since that time, a number of other decisions have been handed down, though still lacking a coherent approach.

In an effort to bring order to an otherwise chaotic array of judicial (and quasi-judicial)
decisions, I developed a framework for delineating the scope of human rights obligations by examining three different parameters: the scope of beneficiaries, the range of rights applicable, and the level of obligation. Structuring an analysis of current jurisprudence around these three parameters reveals a trend toward recognizing varying levels of obligation.

The scope of beneficiaries refers to the range of individuals in relation to whom the state has any obligation under the relevant human rights treaty. States parties to the ICCPR are not bound to respect and ensure the rights of all individuals everywhere. For example, it is clear that, absent special circumstances, states parties are not required to protect the rights of individuals living in other countries from violations perpetrated by the governments of those countries or by non-state actors operating there.

A common feature of the major human rights treaties is that the scope of beneficiaries is typically limited to those individuals who are subject to the state party’s jurisdiction. While it was initially unclear whether this language could encompass individuals situated outside of a state’s territory, the extraterritorial application of human rights treaties has now been clearly established in the jurisprudence of several international judicial and quasi-judicial bodies.

The ICJ has held that when a state party is operating outside of its territory, “international human rights instruments are applicable ‘in respect of acts done by a State in the exercise of its jurisdiction.’” The regional human rights institutions have endorsed the position of the Human Rights Committee that a State may be responsible for violation of the rights and freedoms of persons who are in the territory of another State but who are found to be under the former State's authority and control through its agents operating in the latter State.

Under human rights treaties, the range of rights applicable within a state’s territory will normally be the full range of rights set forth in each treaty. However, this may not be the case when the state is operating abroad. In such situations, the range of applicable rights may be limited by the scope of the state’s authority or control in the circumstances. In general, it may be reasoned that as human rights law is generally predicated on a state’s authority and presumed capacity to control individuals and territories, a state’s human rights obligations while acting abroad would not be as extensive as when it acts on its own territory. Similarly, it may be the case that the application of certain rights requires a higher threshold of control. Indeed, the ICJ and the regional human rights institutions have implied as much.

For example, it may be argued that certain rights cannot be applied where a state is performing a very narrow function in the territory of another state. Where a state is not trying individuals, the right to a fair trial is simply not implicated.

However, another approach is to focus the inquiry not on the question of which rights the state is obliged to secure, but instead on the level of obligation upon states with respect to those rights.

Varying Levels of Obligation

As noted above, the obligation to “respect and ensure” rights set forth in the ICCPR, or, in the words of the European Convention, to “secure” rights, entails a substantial degree of positive obligation.

As with the range of rights, the level of obligation also may be limited where the state operates abroad. The level of obligation may similarly be tied to the scope of a state’s extraterritorial activities or authority to act. In particular, it is arguable that human rights obligations requiring the adoption of affirmative measures may be more limited in an extraterritorial context.

This position finds support in the international jurisprudence referred to above. Seen collectively, the bulk of international authority indicates a trend toward recognizing varying levels of obligation.

In particular, the ever-lowering threshold for “jurisdiction” in the context of negative obligations seems to indicate that these obligations apply whenever a state acts extraterritorially (at least with respect to intentional human rights violations, as opposed to indirect consequences), but that the degree of positive obligations will be dependent upon the type and degree of control (or power or authority) exercised by the state.

Positive obligations are limited by a scope of reasonableness even when applied to a state’s conduct within its territory; there is no reason why application to a state’s extraterritorial conduct would not similarly be bounded by a scope of reasonableness, such that the adoption of affirmative measures is only required when and to the extent that the relevant party de jure or de facto enjoys a position of control that would make the adoption of such measures reasonable. This approach would preserve the integrity of the respective treaties and would vindicate the universal nature of human rights, which is proclaimed in the preambles of all of the human rights treaties considered in this analysis.

At the same time, it would not place unreasonable burdens on states parties. Even though this approach contemplates world-wide application of human rights law, it does so, absent a significant degree of control, only in respect of negative obligations. Thus, a state is bound only to the extent it chooses to project its power, and, even then, is bound simply to refrain from directly perpetrating human rights violations.

It is also possible that a negative obligation can flip into a positive obligation, but this again will depend on an assertion of authority by the state. For example, the state generally has an obligation not to arbitrarily detain. Once it begins detaining people, this converts to a positive obligation to create a regulatory procedure, to ensure humane treatment of the detainee, to provide compensation if the detention is wrongful, etc.
Another example is the negative obligation not to subject someone to an unfair trial. Again, this would not be implicated unless the state it trying people.

Textual Argument Limiting Application to a State Party’s “Territory”

The United States has consistently taken the position that the ICCPR applies only within the territory of the State Party. It bases this position on the text of Article 2 of the Covenant, which reads:

“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind…”

The US argues that the phrase “within its territory and subject to its jurisdiction,” if interpreted according to the generally accepted rules of treaty interpretation, must mean that States Parties to the ICCPR do not have any obligation to respect and ensure the rights of those who are outside of the their territory. This is contrary to the position taken by the Human Rights Committee and the ICJ that territory or jurisdiction is sufficient.

To further support its position the US points to the travaux preparatoires of the Covenant. During the negotiations, it was twice proposed that the phrase “within its territory” be deleted from the text, and both times the proposal was defeated. The US delegates consistently pointed out that it was essential to retain this phrase in order to avoid any obligation to ensure the rights of those outside of a state’s territory. This sentiment was echoed by several other delegations that supported the retention of the phrase.

While this argument appears persuasive on its surface, a closer read of the travaux reveals another possible interpretation. Every delegate that expressed concern about extraterritorial application of the Covenant limited their concern to the obligation to “ensure” rights. In other words, no delegate claimed that they were concerned about the extraterritorial application of the negative obligation to “respect” rights. This holds true even for the later negotiations, where the text already expressly included both the obligation to respect and the obligation to ensure.

Thus, the travaux equally support an interpretation that is consistent with the trend identified above. Indeed, a re-examination of the text demonstrates that the most reasonable interpretation of article 2, using the customary rules of treaty interpretation, is that the phrase “within its territory and subject to its jurisdiction” modifies only the obligation “to ensure”.

As such, article 2 essentially provides that Each State Party undertakes to respect the rights recognized in the Covenant and also to ensure these rights to all individuals within its territory and subject to its jurisdiction. This interpretation is consistent with the travaux and also with the ultimate decisions of the ICJ and regional human rights bodies, all of which have generally limited their findings of extraterritorial violations to breaches of negative obligations. The few instances where they have found violations of positive obligations were situations in which the State acting extraterritorially was occupying the territory, and thus had a large degree of authority and control over the territory, enabling the Court to assimilate that territory to the state’s own.

Negative & Positive Obligations in the Context of Collective Action

In light of the trend identified above, it may be unnecessary to examine the question of jurisdiction for negative obligations. The only relevant issue would be to which subject of obligation the human rights violative conduct is attributable.

For positive obligations, it would be necessary to establish “jurisdiction,” or, as this term is increasingly understood in a human rights context, control. In the context of collective action, it may be appropriate to consider whether individuals or territory are under the control of the relevant entity (e.g. peacekeeping mission) as a whole, and then to parse out responsibility among the participating states and member states.