United States of America
Practice Relating to Rule 144. Ensuring Respect for International Humanitarian Law Erga Omnes
In 1985, in the case of a Salvadoran citizen who had fled El Salvador in 1980 and applied for asylum in the United States, it was argued on behalf of the applicant that the United States was precluded from deporting her to El Salvador, as that would mean exposing her to violations of common Article 3 of the 1949 Geneva Conventions and thus, by virtue of common Article 1 of the 1949 Geneva Conventions, involved the responsibility of the United States to ensure respect for the 1949 Geneva Convention IV, notably its Article 3. An Immigration Court in the United States held that the applicant, “a Salvadoran citizen who is not taking active part in the hostilities, is a protected person under the minimum provisions set forth in Article 3” common to the 1949 Geneva Conventions and that the 1949 Geneva Convention IV “provides a potential basis for relief from deportation within the jurisdiction of the immigration judge”.
However, on appeal, the US Board of Immigration Appeals reversed these findings and concluded that it was unclear “what obligations, if any, Article 1 [common to the 1949 Geneva Conventions] was intended to impose with respect to violations of the Conventions by other States” and that, in any event, the said provision was not self-executing.
In the Baptist Churches case
in 1989, a US District Court considered an application for an injunction to prevent the deportation of Central American nationals seeking temporary refuge based on, inter alia
, Articles 1, 3 and 45 of the 1949 Geneva Convention IV. The plaintiffs argued that “by deporting Salvadorans and Guatemalans to countries where Article 3 violations are occurring, the United States … failed to ‘respect and ensure respect’ for the Convention within the meaning of Article 1”.
Reiterating criteria that had to be met by a treaty in order to be self-executing and applying them to Article 1 of the 1949 Geneva Convention IV, the Court stated:
Article 1 of the Geneva Conventions is not a self-executing treaty provision. The language used does not impose any specific obligations on the signatory nations, nor does it provide any intelligible guidelines for judicial enforcement … The treaty provision is “phrased in broad generalities” … and contains no “rules by which private rights may be determined”.
In 1979, in reaction to the appeal made by the ICRC to ensure respect for international humanitarian law with regard to the conflict in Rhodesia/Zimbabwe, the United States stated: “We … wish to endorse the appeal issued by the International Committee of the Red Cross.”
While the core challenges in the protection of civilians identified in the previous reports of the Secretary-General still need our sustained attention, the new report also identifies several protection policy priorities that need to be explored. In particular the following “emerging” issues would benefit from our attention, and the Group of Friends stands ready to act as a platform to advance them. …
First, on the arbitrary withholding of consent to relief operations: The Group recalls that international humanitarian law obliges all parties to a conflict to protect civilian populations from the effect of armed conflict. One way this can be achieved is by allowing and facilitating access for humanitarian relief operations, including by simplifying and expediting procedures for the rapid and unhindered delivery of life-saving assistance. The Group is concerned about intimidations, threats, arrests, detentions, injuries or killings of humanitarian workers.
In this regard, the Group notes the intention of the Secretary-General to examine the issue of arbitrary withholding of consent to relief operations. We note the fact that several drafting seminars among legal experts from diverse backgrounds have taken place; responding to the Secretary-General’s recommendation in this regard, the Group expresses its readiness to discuss their findings, among other inputs, with a view to elaborating guidance on how to facilitate consent in a peaceful manner. All parties to conflict must abide by international humanitarian principles and practice to protect civilians; the international community needs to take the initiative to guarantee this.
Second, on the issue of casualty tracking and recording: The Group of Friends notes that civilian casualty tracking, where practicable, plays an important role in efforts to reduce harm to civilians. The Group of Friends invites parties to a conflict, as well as UN peacekeeping missions, to recognize the potential value of such a role. With regards to casualty recording, and in light of the recent presentation of the Rights Up Front Plan of Action, the Group notes the continuation of efforts to ensure effective and credible casualty recording mechanisms, noting further that the establishment of systematic and credible records of civilian casualties in the right context could support broader efforts to monitor and report on violations of international humanitarian and human rights law, while taking into account the practical challenges in recording casualties, civilian or otherwise.