Norma relacionada
United States of America
Practice Relating to Rule 144. Ensuring Respect for International Humanitarian Law Erga Omnes
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”.
United States, District Court for the Northern District of California, Baptist Churches case, Judgment, 24 March 1989, § 9.
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”.
United States, District Court for the Northern District of California, Baptist Churches case, Judgment, 24 March 1989, § 12.
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”.
United States, Executive Office for Immigration Review, Harlingen, Texas, Case No. A26 949 415: In the Matter of Jesus del Carmen Medina, in Deportation Proceedings, Decision, 25 July 1985, referred to in Frits Kalshoven, “The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit”, YIHL, Vol. 2, 1999, pp. 4–5.
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.
United States, Board of Immigration Appeals, Case No. A26 949 415 – Harlingen, In re Jesus del Carmen Medina, in Deportation Proceedings: Certification, Decision of 7 October 1988, referred to in Frits Kalshoven, “The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit”, YIHL, Vol. 2, 1999, p. 5.
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.”
United States, Department of State, Statement by the Spokesperson for the Department of State, Mr. Hodding Carter, 21 March 1979.
