South Africa, S. v.

Petane

Part 1
[Source: South African Law Reports, vol. 3, 1988, pp. 51-67]

S v. PETANE

CAPE PROVINCIAL DIVISION

[...]

Postea (November 3 [1987]).

Conradie J: The accused has been indicted before this Court on three counts of terrorism, that is to say,
contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of
attempted murder. [...]

When [...] the accused was called upon to plead he refused to do so. A plea of not guilty on each count was
accordingly entered [...].

The accused’s position is stated to be that this Court has no jurisdiction to try him.

I then heard argument on what was submitted to be a jurisdictional question. As the argument progressed I
began to doubt whether the point which was being raised was really a jurisdictional point at all. The point in its
early formulation was this. By the terms of Protocol I to the Geneva Conventions the accused was entitled to be
treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an
alleged offence given to the so-called ‘protecting power’ appointed to watch over prisoners-of-war. Since, if
such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or
otherwise for giving such a notice should be determined before evidence was led. [...]

Articles 45(1) and (2) of Protocol I contain the following provisions:

1. ‘A person who takes part in hostilities and falls in the power of an adverse Party shall be presumed to be a
prisoner of war and therefore shall be protected by the Third Convention if he claims the status of prisoner of
war, or if he appears to be entitled to such status, or if the Party on which he depends claims such status on his
behalf by notification to the detaining Power or to the Protecting Power. Should any doubt arise as to whether
any such person is entitled to the status of prisoner of war, he shall continue to have such status and, therefore,
to be protected by the Third Convention and this Protocol until such time as his status has been determined by
a competent tribunal.

2. If a person who has fallen into the power of an adverse Party is not held as a prisoner of war and is to be tried
by that Party for an offence arising out of the hostilities, he shall have the right to assert his entitlement to
prisoner of war status before a judicial tribunal and to have that question adjudicated. Whenever possible
under the applicable procedure, this adjudication shall occur before the trial for the offence.’

It is not necessary to quote the remainder of para 2 of art 45.

If the terms of the Protocol were found to apply I would be bound by these provisions and failure to give effect
thereto might amount to an irregularity. I say ‘might’ amount to an irregularity because the article, to my mind,
clearly envisages a situation where the applicability of the Protocol is conceded and the only question before
the Court is the entitlement to protection of an individual captive.

The issue raised by such a plea is, in my view, not a jurisdictional issue. A captive who raises such a defence
avers that, because he fought a war as a soldier in accordance with the laws of war, he is not guilty of any crime,
despite having deliberately killed or injured others or damaged their property. In R v Guiseppe and
Others 1942 TPD 139, Malan J set aside the conviction of Italian prisoners-of-war on the ground that the
convictions, without notice to the protecting power, had been irregular. He did not hold that the court, in that
case a magistrate’s court, had no jurisdiction to try the offenders. The case is not authority for the proposition
that the accused’s acts are not justiciable before a municipal tribunal. Indeed, art 45(1) of Protocol I envisages
that the status of such a prisoner should be determined by a competent municipal tribunal. [...]

On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva
Conventions. The only one of these Conventions which concerns me today is the Geneva Convention Relative to
the Treatment of Prisoners of War of 12 August 1949.

Part 2
South Africa was among the nations which concluded the treaties. According to the International Review of the
Red Cross (January/February 1987 No 256), 165 countries were as at 31 December 1986 parties to the Geneva
Conventions. This must be very nearly all the countries in the world. It is fair to state that the terms of these
Conventions enjoy universal recognition. One of these terms is, of course, that which describes their field of
application. Except for the common art 3, [...] they apply to wars between States.

After the Second World War many conflicts arose which could not be characterised as international. It was
therefore considered desirable by some States to extend and augment the provisions of the Geneva
Conventions so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of
these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions,
both of which came into force on 7 December 1978.

Protocol II relates to the protection of victims of non-international armed conflicts. Since the state of affairs
which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II
does not concern me at all. [...]

Article 2 common to all the Geneva Conventions provides, inter alia, that:

‘The present Convention shall apply to all cases of declared war or any other armed conflict which may arise
between two or more of the High Contracting Parties, even if the State of war is not recognized by one of them.’

Article 1(4) of Protocol I amplifies and extends common art. 2 by providing that:

‘The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting
against colonial domination and alien occupation and against racist régimes in the exercise of their right of
self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among States in accordance with the
Charter of the United Nations.’
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial.
According to Bothe, Partsch and Solf, New Rules for Victims of Armed Conflicts (1982), the debate about this
article took up almost the whole of the first session.

The article has remained controversial. More debate has raged about its field of operation than about any other
articles in Protocol I. It has been criticised for having introduced political objectives into humanitarian law,
thus making it very difficult for any State to concede its applicability; and it has been criticised for the
vagueness of its terminology. (See Andrew Borrowdale “The Law of War in Southern Africa: The Growing
Debate” XV Cilsa 1982 at 41.) So, although practically every State in the world has agreed that the principles of
the Geneva Conventions should apply to conventional international armed conflicts, far fewer (as I shall show)
were or are satisfied with the extension of these provisions to the new conflicts characterised as ‘international’.

South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, [...]
as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued
that it would have been incorporated into South African law. If it has been so incorporated it would have to be
proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to
have committed his offences was such that it could properly be described as an ‘armed conflict’ conducted by
‘peoples’ against a ‘racist régime’ in the exercise of their ‘right of self- determination’. Once all this has been
shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as
to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking,
he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian
targets. [...]

[T]he Appellate Division accepted that customary international law was, subject to its not being in conflict with
any statutory or common municipal law, directly operative in the national sphere. The Appellate Division
described the attributes of a rule of customary international law which would make it applicable in South
Africa. It would have to be either universally recognised or it would have to have received the assent of this
country. In holding this, the Court referred to a passage in Oppenheim International Law 8th ed vol 1 at 39
which States the conditions concerning universal acceptance or State assent for recognition of a rule of
customary international law as part of the law of England. Our law and English law in this respect is therefore
the same.

[...] International law does not require universal acceptance for a usage of States to become a custom.

[...] I am prepared to accept that where a rule of customary international law is recognised as such by
international law it will be so recognised by our law. [...]

Custom is usage which is considered by States to be legally binding:

‘All that theory can say is this: Whenever and as soon as a line of international conduct frequently adopted by
States is considered legally obligatory or legally right, the rule which may be abstracted from such conduct is a
rule of customary international law.’

(Oppenheim (op. cit. vol 1 at 27).) The conduct of States is referred to as State practice. The view that such
conduct is legally right or obligatory is called the opinio juris.

G J H van Hoof Rethinking the Sources of International Law (1983) is one of the many writers on
international law who supports this two-element approach. He says at 93 that it
‘buttresses the practice-oriented character of international custom by demanding that the formulation of the
content of the rule in stage one takes place through usus: customary law is built upon repetition. Without the
repetition of similar conduct in similar situations there can be no custom, and without custom there can be no
customary law. It is therefore a reminder of the fact, sometimes overlooked, that although opinio juris turns a
rule into a rule of international law, it is the usus which makes it a rule of customary law’. [...]

There are writers who espouse the view that State practice alone is sufficient to create a rule of customary
international law, and others who believe that the opinio juris alone is sufficient. [...]

I am prepared to accept that, as might happen in rapidly developing fields of technical or scientific endeavour,
like space exploration, if all the States involved share an understanding that a particular rule should govern
their conduct, such a rule may be created with little or no practice to support it. Indeed, the opportunity for
putting the understanding into practice may not arise. It may be, as Van Hoof (op. cit.)suggests at 86, that it
would be better to regard customary international law so created as not emanating from custom but from a
new and different source.

I am also prepared to accept that customary international law may in this way be created very quickly, but
before it will be considered by our municipal law as being incorporated into South African law the custom,
whether created by usus and opinio juris or only by the latter, would at the very least have to be widely
accepted.

Mr Donen says that by near-universal State practice the provisions of Protocol I have passed into customary
international law which, since it is part of South African law, obliges this Court to apply the provisions thereof.
He argues that the State practice which has made the provisions of the first Protocol part of customary
international law is the attitude of States, practically all the States of the world, expressed in frequent
condemnation of the policies of this country at the United Nations. There are, to my mind, several difficulties
with this proposition.

In the first place, it is doubtful whether resolutions passed by the United Nations General Assembly qualify as
State practice at all. There is, says Van Hoof (op. cit. at 108), no unanimity on what is to be considered State
practice [...]. Akehurst’s detailed study on custom shows that it is far from easy to indicate in abstracto whether
a certain type of act can be taken to belong to usus or not. Akehurst himself employs an extremely broad
concept of usus. Almost all activities of States are counted. Illustrative in this respect is his opinion on
statements by States in abstracto:

‘It is impossible to study modern international law without taking account of declaratory resolutions and other
statements made by States in abstracto concerning the content of international law.’

This statement as such is certainly correct. It does not follow, however, that such resolutions or declarations
can be classified as usus giving rise to custom. They may constitute opinio juris which, if expressed with respect
to a rule sufficiently delineated through usus, may create a customary rule of international law. To this
extent Akehurst is correct in stating that

‘(w)hen States declare that something is customary law it is artificial to classify such a declaration as about
something other than customary law’.

But, if there is no preceding usus, such a declaration cannot give birth to a customary rule, unless, of course,
the declaration itself is treated as usus at the same time. However, it takes too wide a stretching of the concept
of usus to arrive at the latter conclusion. As was rightly observed, ‘repeated announcements at best develop the
custom or usage of making such pronouncements’.
 Part 3
As was already reiterated in the foregoing, it is dangerous to denaturate the practice-oriented character of
customary law by making it comprise methods of law-making which are not practice-based at all. This
undermines the certainty and clarity which the sources of international law have to provide. The Universal
Declaration on Human Rights may be taken as an example in this respect. It has been asserted that in the
course of time its provisions have grown into rules of customary international law. This view is often
substantiated by citing abstract statements by States supporting the Declaration or references to the
Declaration in subsequent resolutions or treaties. Sometimes it is pointed out that its provisions have been
incorporated in national constitutions. But what if States making statements like these or drawing up their
constitutions in conformity with the Universal Declaration at the same time treat their nationals in a manner
which constitutes a flagrant violation of its very provisions, for instance, by not combatting large-scale
disappearances, by practicing torture or by imprisoning people for long periods of time without a fair trial?
Even if abstract statements or formal provisions in a constitution are considered a State practice, they have at
any rate to be weighed against concrete acts like the ones mentioned.

In the present author’s view, the best position would seem to be that it is solely the material, concrete and/or
specific acts of States which are relevant as usus. As was said, it is difficult to come up with a definition in
abstracto, but the following description would seem to offer a useful handhold:

‘The substance of the practice required is that States have done, or abstained from doing, certain things in the
international field [...]. State practice, as the material element in the formulation of custom, is, it is worth
emphasizing, material: it is composed of acts by States with regard to a particular person, ship, defined area of
territory, each of which amounts to the assertion or repudiation of a claim relating to a particular apple of
discord.’

It is, I believe, correct to say that the practice of condemnation of South Africa is evidence only of a general
dislike of its internal policies. There is nothing in the condemnation from which the content of a rule of
customary international law may be derived. I fail completely to appreciate how the condemnation of South
Africa, or even the labelling of apartheid as a crime against humanity, leads to the inference that Protocol I has
been accepted as part of customary international law by those States uttering those condemnations. I suppose
that, since ratification of Protocol I is open to every State, very little short of that could be construed as an
acceptance of its provisions.

In particular, United Nations resolutions cannot be said to be evidence of State practice if they relate, not to
what the resolving States take it upon themselves to do, but to what they prescribe for others. Customary
international law is founded on practice, not on preaching.

Indeed, Amato [sic], The Concept of Customary International Law (Cornell University Press 1971) puts
forward the view that not even claims put forward by States can be considered as State practice. The State must
act.

‘What is an “act” of State? In most cases a State’s action is easily recognised. A State sends up an artificial
satellite, tests nuclear weapons, receives ambassadors, levies customs duties, expels an alien, captures a pirate
vessel, sets up a drilling rig in the continental shelf, visits and searches a neutral ship and similarly engages in
thousands of acts through its citizens and agents. On the other hand, a claim is not an act. As a matter of daily
practice, international law is largely concerned with conflicting international claims. But the claims themselves,
although they may articulate a legal norm, cannot constitute the material component of custom, for a State has
not done anything when it makes a claim; until it takes enforcement action the claim has little value as a
prediction of what the State will actually do.’
 MacGibbon (in Bin Cheng (ed.) International Law Teaching Practice) in a chapter entitled ‘Means for the
Identification of International Law’ and subtitled ‘General Assembly Resolutions: Custom Practice and
Mistaken Identity’, concludes that General Assembly resolutions can neither create new customary
international law, nor be evidence of State practice [...].

Nor, in the view of MacGibbon, a view of which the logic seems inescapable, can a General Assembly resolution
constitute the required opinio juris to create custom:

‘If the existence of the opinio juris is in question, what is sought is evidence of what the Court in the North Sea
Continental Shelf cases described as a general recognition that a rule of law or legal obligation is involved. To
focus that search exclusively on a General Assembly resolution is bound to prove profitless because such an
instrument of an essentially recommendatory character is incapable of exhibiting such an attribute. Again, the
issue turns on the answer to the question posed earlier: what are States voting for when they vote in favour of a
resolution? And, as before, the answer can only be: they are voting for what they know to be merely a
recommendation. It is axiomatic that such a vote cannot convey the sense of legal obligation essential to an
expression of the opinio juris. [...]’

(MacGibbon (op. cit. at 23).)

The same point is also well made by Thirlway International Customary Law and Codification, who writes at
58:

“The mere assertion in abstracto of the existence of a legal right or legal rule is not an act of State practice; but it
may be adduced as evidence of the acceptance by the State against which it is sought to set up a claim, of the
customary rule which is alleged to exist, assuming that the State asserts that it is not bound by the alleged rule.
More important, such assertions can be relied on as supplementary evidence, both of State practice and of the
existence of the opinio juris; but only as supplementary evidence, and not as one element to be included in the
summing up of State practice for the purpose of assessing its generality.

[...] The only apparent exception to this principle – which is not really an exception – is the act of a State in
ratifying or acceding to a multilateral treaty which directly or indirectly asserts the existence, at least for the
future and for the States party to the treaty, of a rule of law. Just as a series of bilateral treaties concluded over a
period of time by various States, all consistently adopting the same solution to the same problem of the
relationships between them, may give rise to a new rule of customary international law, so the general
ratification of a treaty laying down general rules to govern the future relationships of States in a given field has a
similar effect. The practice here is concrete in the sense that each State does not merely assert the desirability, or
even the existence, of the rule of law in question, but by a definite and formal decision accepts the rule for the
regulation of its own interests in future differences in the field covered by the treaty. For this reason it is
possible, as the International Court of Justice stated in the North Sea Continental Shelf cases, for a custom to
arise simply from the general (but not universal) ratification of a codifying treaty.”

Part 4
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not
been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for
ratification there were few States which were involved in colonial domination or the occupation of other States
and there were only two, South Africa and Israel, which were considered to fall within the third category of
racist régimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few
countries; too few countries, in my view, to permit any general usage in dealing with armed conflicts of the kind
envisaged by the Protocol to develop. [...]
 Mr Donen contended that the provisions of multilateral treaties can become customary international law under
certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot
acquire wider application than among the parties to the treaty.

Brownlie Principles of International Law 3rd ed. at 13 agrees that non-parties to a treaty may by their conduct
accept the provisions of a multilateral convention as representing general international law. Van Hoof (op.
cit.) writes at 109:

“Most writers agree that treaties are to be considered State practice which may generate customary rules of
international law. They may find support in the ICJ’s statement in the North Sea Continental Shelf case, holding
that: “There is no doubt that this process is a perfectly possible one and does from time to time occur. It
constitutes indeed one of the recognised methods by which new rules of customary international law may be
formed.”

It is true that treaties may be considered usus, but a number of things should be kept in mind in this respect.
First, the treaty concerned must be concrete or specific enough to be able to delineate the content of a customary
rule. Furthermore, and this is more important here, a treaty is, of course, binding on the States parties to it.
Consequently, the question of its being capable of generating a customary rule is relevant only with respect to
States which are not parties to it. For a customary rule of international law to come into being for non-parties,
the latter must express their opinio juris with respect to it. One should be careful, however, to draw the
conclusion that they indeed have done so. [...] Similarly, it would seem that in the case of a multilateral treaty
which is open for ratification by all states, the opinio juris constituting the “accession by way of custom” has to
be unambiguous. The fact that a State is not prepared to ratify the treaty cannot be without significance in such a
situation.”

I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

Starke (op. cit.) remarks at 43:

‘The mere fact that there are [sic] a large number of parties to a multilateral convention does not mean that its
provisions are of the nature of international law binding non-parties. Generally speaking, non-parties must by
their conduct distinctly evidence an intention to accept such provisions as general rules of international law. This
is shown by the decision of the International Court of Justice in 1969 in the North Sea Continental Shelf cases,
holding on the facts that art. 6 of the Geneva Convention of 1958 on the Continental Shelf, laying down the
equidistance rule of apportionment of a common continental shelf, had not been subsequently accepted by the
German Federal Republic – a non-party – in the necessary manifest manner.’

Suppose for the moment that Protocol I had been enthusiastically embraced by the world community, and
suppose that it was good law to say that its terms bound South Africa in spite of its non-assent, what we would
then have is a situation in which neither party which is engaged in what has been called the ‘armed conflict’ in
South Africa has accepted Protocol I. I shall explain.

The one party to what the accused’s counsel characterised as the ‘armed conflict’ is the South African State. The
other party is said to be the ANC through its military wing, Umkhonto We Siswe, of which the accused has been
admitted to be a member.

It was suggested by defence counsel that the ANC acceded to the Protocol, as it would have been entitled to do
in terms of art. 96. However, this suggestion is open to serious doubt. In his article entitled ‘The Law of War in
South Africa-The Growing Debate’, referred to earlier, Andrew Borrowdale writes at 41:
‘On 20 October 1980 Oliver Tambo, President of the African National Congress of South Africa (ANC), handed to
the President of the Red Cross the following declaration signed by himself:

“The African National Congress of South Africa hereby declares that it intends to respect and be guided by the
general principles of international humanitarian law applicable in armed conflicts.

Wherever practically possible, the African National Congress of South Africa will endeavour to respect the rules
of the four Geneva Conventions of 12 August 1949 for the victims of armed conflicts and the 1977 additional
Protocol I relating to the protection of victims of international armed conflicts.” [...]’

Borrowdale comes to the conclusion, however, that the ANC declaration

‘would not seem to have been made in the context of art 96(3). In the first place, it does not appear to have been
addressed to, or deposited with, the depository referred to in art 96(3), viz the Swiss Federal Council. Secondly,
the ANC has not undertaken to apply the rules of the Geneva Conventions of 1949 and the additional Protocol I
of 1977 unconditionally, but merely to respect them whenever practically possible. [...]’

[...]

Nevertheless, despite the refusal of each party to the ‘conflict’ to bind itself to the Protocol, Mr Donencontends
that the Protocol binds them both. This proposition is far-reaching. What one has here are two parties, one of
which is not a State, which are agreed on at least one thing. Neither, for its own reasons, appears to desire the
protection for civilians or combatants of Protocol I. Were an international tribunal to hear a dispute between
the parties about the binding force of Protocol I, it would be faced with contentions from each side that neither
desired its application. I have not found a case in which a rule or alleged rule of customary international law
has been applied in these circumstances. There is hardly likely to be such a case, since customary international
law rests on a foundation of consensuality. For that proposition reference may be made to
Oppenheim’s International Law 8th ed. vol 1 at 15-18, and to the work by Van Hoof, which I have already cited,
at 97. [...]

I have not been persuaded by the arguments which I have heard on behalf on the accused that the assessment
of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that ‘it is argued with
growing conviction that under contemporary international law members of SWAPO and the ANC are members
of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the
1977 Protocols’, is correct. On what I have heard in argument I disagree with his assessment that there is
growing support for the view that the Protocols reflect a new rule of customary international law. No writer has
been cited who supports this proposition. Here and there someone says that it may one day come about. I am
not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule
of customary international law, but I need not decide that point today.

For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in
customary international law. They accordingly form no part of South African law. [...]

In the result, the preliminary point is dismissed. The trial must proceed.

Discussion

1.
a. Which roles does IHL assign to the Protecting Power?
 b. Which purpose is served by notifying the Protecting Power of trials or sentences of prisoners of war?
(GC III, Arts 104 and 107)
c. What may the results be if a court of a Detaining Power fails to notify the Protecting Power of the
trial of a prisoner of war? Does the court then have no jurisdiction to try him, as the defendant here
argues? Or is it that the trial could not proceed without such notice? Is the issue of notification thus a
jurisdictional or a procedural issue? (GC III, Arts 104; P I, Art. 45)
2.
a. If Protocol I had been binding for South Africa, why does the Court nevertheless state that, even in
that case, failure to give effect to its provisions only “might amount to an irregularity”?
b. Under which condition could the defendant invoke Protocol I although at the time South Africa had
not become party to it? If Protocol I was applicable, what would the consequences be for the
defendant? Could the trial take place? Would he have combatant status? Could the Court decide
upon this question? If he did have combatant status, could he be punished for acts of terrorism?
Could he be punished for having killed South African soldiers? Is it necessary for attaining or
maintaining prisoner-of-war status that he must not have attacked civilian targets, as the Court
asserts? (P I, Arts 44 and 45)
c. Even if Protocol I is binding for South Africa as customary law, must not both parties to the conflict
be bound by Protocol I for it to be applicable? Is the ANC a party to the Protocol? Is it bound by
customary law? If Art. 1(4) of Protocol I is customary law, does the ANC have to formally declare its
intention to respect and apply the Geneva Conventions and the Protocols in conformity with Art. 96
of Protocol I? If Art. 1(4) of Protocol I is customary law, is customary IHL of international armed
conflicts applicable in the conflict between the government of South Africa and the ANC even though
neither desired its application?
3.
a. Has there to be first usus and later opinio juris to form a customary rule? Or can both elements
appear simultaneously? Are there certain material sources which show usus and others opinio juris ?
Or do all show simultaneously usus and opinio juris ?
b. Is customary law based on the acceptance of States or on their opinion? Does the answer to that
question matter? Can you think of a rule which would be either customary or not, depending on the
answer to this question?
c. Can customary IHL also be derived from State acts such as diplomatic statements, undertakings and
declarations? Are the latter usus ? Can only acts or also words show usus? Do claims necessarily
conflict, or can they also show agreement on a norm? If declarations also count as practice, must they
refer to an actual situation, or can they also be abstract statements about (i.e. in favour of) the rule?
Can a rule become customary on the basis of statements alone? What if the actual behaviour of
belligerents is incompatible with those abstract statements?
d. Do UN General Assembly resolutions constitute State practice? Do repeated announcements only “at
best develop the custom and usage of making such pronouncements”? What about, for instance, the
prohibition of torture? Is there no customary law against committing torture because some States
practice torture? Yet what explains the fact that most of those States deny committing acts of
torture? Do such denials not constitute a concrete act of which the Court speaks? Would D’Amato
agree?
e. Is ratification of Protocol I (together with the practice of other States) an instance of State practice
able to make all its provisions customary? Is non-ratification of a treaty strong evidence of its non-
acceptance? Does non-ratification indicate non-acceptance of all rules contained in the treaty, or
perhaps only of some of them? Thus, does non-ratification of Protocol I automatically mean that Art.
1(4) of Protocol I in particular is not customary law?
f. Once a rule has been included in a multilateral treaty, is the question whether it is customary only
relevant for non-Parties? Has only their practice to be considered whenever evaluating whether it is
customary? What would this mean for rules laid down in a treaty as widely accepted as the Geneva
Conventions?
g. Does the fact that when Protocol I was concluded in 1977 the category of “racist regimes” listed in
Art. 1(4) was limited to very few countries, one of them being South Africa, make it impossible to
determine the general usage necessary for establishing the article as customary law? If so, because
those States chose not to be bound by the Protocol? Even if almost all other States considered
Protocol I applicable to such a situation? If a situation rarely arises or arises in only a few States, can
 rules regulating that situation never become customary international law? Is the position of the
Court on this question connected to its theory on what counts as usus?
h. Can a rule of IHL become customary even if South Africa objects to it? Must a rule of customary IHL
be applied by South African courts although South Africa has never accepted that rule? Even though
South Africa was against that rule as a treaty rule in Protocol I? Even though South Africa has
persistently objected to that rule?
i. Are none of the principles reflected in Protocol I customary law and, as such, binding on South
Africa? Under the customary law of 1987, did the law of international armed conflict apply to
national liberation wars? Does it apply under today’s customary law, taking into account that South
Africa became a State party to Protocol I in 1995? How could a rule like Art. 1(4) of Protocol I become
customary?
4. Do you agree with the criticism that Art. 1(4) of Protocol I introduced political objectives into humanitarian
law? Does Art. 1(4) of Protocol I introduce anything at all, i.e., is it an innovative development in the law of
war, or is it merely a reflection of existing international law? Does Art. 1(4) lead to a situation where both
sides in an armed conflict are not equal under IHL? Does Art. 1(4) violate the separation between jus in
bello and jus ad bellum? [See United States, President Rejects Protocol I]
5. What is the place of international customary law within your national law? Within South African national
law at the time of the case? Must customary law be universally recognized before it may or must be
incorporated into your national law?

6. Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
7. PROTECTING POWERS
8. ARTICLE 8[ Link ]

The present Convention shall be applied with the cooperation and under the scrutiny of the
Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict. For this
purpose, the Protecting Powers may appoint, apart from their diplomatic or consular staff, delegates
from amongst their own nationals or the nationals of other neutral Powers. The said delegates shall
be subject to the approval of the Power with which they are to carry out their duties.
The Parties to the conflict shall facilitate to the greatest extent possible the task of the
representatives or delegates of the Protecting Powers.
The representatives or delegates of the Protecting Powers shall not in any case exceed their
mission under the present Convention. They shall, in particular, take account of the imperative
necessities of security of the State wherein they carry out their duties.

9. APPOINTMENT OF PROTECTING POWERS AND OF THEIR SUBSTITUTE

10. Article 5 [ Link ] -- Appointment of Protecting Powers and of their substitute

1. It is the duty of the Parties to a conflict from the beginning of that conflict to secure the
supervision and implementation of the Conventions and of this Protocol by the application of the
system of Protecting Powers, including ' inter alia ' the designation and acceptance of those Powers, in
accordance with the following paragraphs. Protecting Powers shall have the duty of safeguarding the
interests of the Parties to the conflict.

2. From the beginning of a situation referred to in Article 1 [ Link ] , each Party to the conflict shall
without delay designate a Protecting Power for the purpose of applying the Conventions and this
Protocol and shall, likewise without delay and for the same purpose, permit the activities of a
Protecting Power which has been accepted by it as such after designation by the adverse Party.

3. If a Protecting Power has not been designated or accepted from the beginning of a situation
referred to in Article 1 [ Link ] , the International Committee of the Red Cross, without prejudice to the
 right of any other impartial humanitarian organization to do likewise, shall offer its good offices to the
Parties to the conflict with a view to the designation without delay of a Protecting Power to which the
Parties to the conflict consent. For that purpose it may, ' inter alia ', ask each Party to provide it with a
list of at least five States which that Party considers acceptable to act as Protecting Power on its
behalf in relation to an adverse Party, and ask each adverse Party to provide a list of at least five
States which it would accept as the Protecting Power of the first Party; these lists shall be
communicated to the Committee within two weeks after the receipt of the request; it shall compare
them and seek the agreement of any proposed State named on both lists.

4. If, despite the foregoing, there is no Protecting Power, the Parties to the conflict shall accept without
delay an offer which may be made by the International Committee of the Red Cross or by any other
organization which offers all guarantees of impartiality and efficacy, after due consultations with the
said Parties and taking into account the result of these consultations, to act as a substitute. The
functioning of such a substitute is subject to the consent of the Parties to the conflict; every effort shall
be made by the Parties to the conflict to facilitate the operations of the substitute in the performance of
its tasks under the Conventions and this Protocol.

5. In accordance with Article 4 [ Link ] , the designation and acceptance of Protecting Powers for the
purpose of applying the Conventions and this Protocol shall not affect the legal status of the Parties to
the conflict or of any territory, including occupied territory.

6. The maintenance of diplomatic relations between Parties to the conflict or the entrusting of the
protection of a Party's interests and those of its nationals to a third State in accordance with the rules
of international law relating to diplomatic relations is no obstacle to the designation of Protecting
Powers for the purpose of applying the Conventions and this Protocol.

7. Any subsequent mention in this Protocol of a Protecting Power includes also a substitute.
11. GENERAL PRINCIPLES AND SCOPE OF APPLICATION
12. Article 1[ Link ] -- General principles and scope of application

1. The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all
circumstances.

2. In cases not covered by this Protocol or by other international agreements, civilians and combatants
remain under the protection and authority of the principles of international law derived from established
custom, from the principles of humanity and from the dictates of public conscience.

3. This Protocol, which supplements the Geneva Conventions of 12 August 1949 for the protection of
war victims, shall apply in the situations referred to in Article 2 [ Link ] common to those Conventions.

4. The situations referred to in the preceding paragraph include armed conflicts in which peoples are
fighting against colonial domination and alien occupation and against racist régimes in the exercise of
their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration
on Principles of International Law concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations.

IV. Scrutiny by Protecting Powers and the ICRC

1. The Protecting Power

Introductory text
Under international law, foreigners enjoy diplomatic protection by their home country. When such diplomatic
protection is not possible because there are no diplomatic relations between the country of residence and the
home country, the latter may appoint another State – a protecting power – to protect its interests and those of
its nationals in the third State. This appointment is only valid if the three States concerned agree. IHL has
taken advantage of this traditional institution of the law of diplomatic relations,[13] it has clarified and added
to it for the purpose of implementing its rules, by prescribing that IHL “shall be applied with the co-operation
and under the scrutiny of the Protecting Powers”.[14] In an armed conflict such Protecting Powers must
obviously be chosen from among neutral States or other States not parties to the conflict.

The Protecting Powers are mentioned in more than 80 provisions of the Conventions and Protocol I, in
connection with the following tasks: visits to protected persons, consent for certain extraordinary measures
concerning protected persons, the provision of information about certain other measures, supervision of relief
missions and evacuations, reception of applications by protected persons, assistance in judicial proceedings
against protected persons, transmission of information, documents and relief goods, and the offering of good
offices. Most of these tasks are parallel to those of the ICRC. This duplication is intended, as it should lead to
increased supervision of respect for IHL.

IHL obliges parties to international armed conflicts to designate Protecting Powers.[15] However, in practice,
such designation is the main problem. Basically, all three States concerned must agree with the designation.
According to the Conventions, if no Protecting Powers can thus be appointed, a detaining or occupying power
can ask a third State bilaterally to act as a substitute Protecting Power. If even this does not work, the offer of a
humanitarian organization such as the ICRC to act as a humanitarian substitute for a Protecting Power must be
accepted. Protocol I has fleshed out the appointment procedure.[16] Nevertheless, in conformity with the
cooperation-oriented approach needed for the implementation of IHL, no Protecting Power can act efficiently
– and a neutral State will in any case be unwilling to act – without the consent of both belligerents.

Although Protocol I clarifies that the designation and acceptance of Protecting Powers do not affect the legal
status of the parties or of any territory[17] and that the maintenance of diplomatic relations is no obstacle to
the designation of Protecting Powers,[18] Protecting Powers have been designated in only five of the numerous
armed conflicts that have broken out since World War II.[19] Even there, they played a limited role. In an
international legal order marked by the idea – or at least the ideal – of collective security, where at least one
side in an armed conflict is considered (or at least labelled) an outlaw, neutrality becomes an increasingly
obsolete concept and neutral States willing and likely to be designated as Protecting Powers increasingly rare.

The ICRC, for its part, has no interest in acting as a substitute Protecting Power, as it can fulfil most of the
latter’s functions in its own right, without giving the impression that it represents only one State and not all the
victims. For one of the rare functions which IHL confers only upon the Protecting Powers and not also upon
the ICRC, that of being notified of and providing assistance in judicial proceedings against protected persons,
the ICRC has managed to be recognized as a de facto substitute when there is no Protecting Power.

Introduction
Quotation

The ICRC’s mission

Since it was founded in 1863, the ICRC has been working to protect and assist the victims of armed conflict and
other situations of violence. It initially focused on wounded soldiers but over time it extended its activities to
cover all victims of these events.
In A Memory of Solferino, Henry Dunant suggested creating national relief societies,[1] recognizable by their
common emblem, and an international treaty to protect the wounded on the battlefield.[2] A permanent
committee was established in Geneva to further Dunant’s ideas. A red cross on a white ground [reversing the
colours of the Swiss flag and paying tribute to the country, as host of the Geneva International Conference of
1863] was chosen as the emblem and the committee went on to adopt the name of the International Committee
of the Red Cross.

Initially, it was not the ICRC’s intention to take action on the ground. However, the National Societies of
countries in conflict – viewed as too close to the authorities – asked the ICRC to send its own relief workers,
believing that humanitarian work in times of conflict needed to offer guarantees of neutrality and
independence acceptable to all parties, which only the ICRC could do. The ICRC therefore had to build up
operational activities very quickly within a framework of neutrality and independence, working on both sides of
the battlefield. Formal recognition of this function came later, when the Geneva Conventions explicitly
recognized the purely humanitarian and impartial nature of the ICRC’s activities, and gave the organization a
special role in ensuring the faithful application of international humanitarian law.

The ICRC defines its mission in the following terms:

The International Committee of the Red Cross (ICRC) is an impartial, neutral and independent organization
whose exclusively humanitarian mission is to protect the lives and dignity of victims of armed conflict and
other situations of violence and to provide them with assistance.

The ICRC also endeavours to prevent suffering by promoting and strengthening humanitarian law and
universal humanitarian principles.

Established in 1863, the ICRC is at the origin of the Geneva Conventions and the International Red Cross and
Red Crescent Movement. It directs and coordinates the international activities conducted by the Movement in
armed conflicts and other situations of violence.k

To be able to carry out its mission effectively, the ICRC needs to have the trust of all States, parties and people
involved in a conflict or other situation of violence. This trust is based in particular on an awareness of
the ICRC’s policies and practices. The ICRC gains people’s trust through continuity and predictability.
Combining effectiveness and credibility irrespective of time, place or range of needs is a permanent challenge
for the organization, because it must be able to prove it can be both pragmatic and creative. Within the
framework of the ICRC’s clear strategy and priorities, its delegations in the field are thus given considerable
autonomy to decide how best to help victims of conflict and other situations of violence.

[…]
The ICRC’s identity

The ICRC’s purpose

The raison d’être of the ICRC is to ensure respect, through its neutral and independent humanitarian work, for
the lives, dignity and physical and mental well-being of victims of armed conflict and other situations of
violence. All of the ICRC’s work is geared towards meeting this fundamental objective and strives to fulfil this
ideal. The ICRC takes action to meet the needs of these people and in accordance with their rights and the
obligations incumbent upon the authorities.

The dual nature of the ICRC’s work

The ICRC’s work developed along two lines. The first of these is operational, i.e. helping victims of armed
conflict and other situations of violence. The second involves developing and promoting international
humanitarian law and humanitarian principles.

These two lines are inextricably linked because the first operates within the framework provided by the second,
and the second draws on the experience of the first and facilitates the ICRC’s response to the needs identified.
This dual nature thus reinforces the very identity of the ICRC and distinguishes it from other international
humanitarian organizations, private or intergovernmental, which generally concentrate on just one of these
two priorities.

An organization with a mandate

A key characteristic of the ICRC is that it was given a mandate (or rather mandates) by the States party to the
Geneva Conventions to help victims of armed conflict. Its work is therefore firmly rooted in public
international law. In other situations of violence, the ICRC derives its mandate from the Statutes of the
Movement.[3]

The main legal basis for the ICRC’s work is to be found in international humanitarian law. The Statutes of the
International Red Cross and Red Crescent Movement (the Movement) and resolutions of the International
Conference of the Red Cross and Red Crescent and the Council of Delegates underscore the legitimacy of
the ICRC’s work. International humanitarian law, like the Statutes of the Movement, confirms a historical
tradition of ICRC action which predates its successive codifications.

States gave the ICRC the responsibility of monitoring the faithful application of international humanitarian
law. As the guardian of humanitarian law, the ICRC takes measures to ensure respect for, to promote, to
reaffirm and even to clarify and develop this body of law. The organization is particularly concerned about
possible erosion of international humanitarian law and takes bilateral, multilateral or public steps to promote
respect for and development of the law.

The ICRC generally cites international humanitarian law in reference to its activities. It nevertheless reserves
the right to cite other bodies of law and other international standards protecting people, in particular
international human rights law, whenever it deems it necessary.

The ICRC has developed several policy documents that draw on its long experience. These texts serve as a guide
for its actions and aim to give the organization long-term coherence, which in turn gives the ICRC added
predictability and credibility when exercising its mandate.

Membership in a Movement

Another characteristic of the ICRC is its membership in a Movement – a Movement which it initiated.
The ICRC is one component, and National Societies and the International Federation of Red Cross and Red
Crescent Societies (the Federation) are the others. This link with the Movement is reinforced by the similarity
of tasks of all Movement components and by the use of common emblems.

The Movement’s mission is:

 to prevent and alleviate suffering wherever it may be found;

  to protect life and health and ensure respect for the human being, in particular in times of armed
conflict and other emergencies;
 to work for the prevention of disease and for the promotion of health and social welfare;
 to encourage voluntary service and a constant readiness to give help by the members of the Movement,
and a universal sense of solidarity towards all those in need of

its protection and assistance (Preamble to the Statutes of the Movement).

It may be added that by carrying out its activities throughout the world, the Movement contributes to the
establishment of a lasting peace.
The mission of the National Societies is to carry out humanitarian activities within their own countries,
particularly in the role of auxiliaries to the public authorities in the humanitarian field.[4]

The ICRC undertakes procedures to recognize National Societies on the basis of criteria set out in the Statutes
of the Movement. The recognition of National Societies makes them full members of the Movement and eligible
to become members of the Federation. The ICRC cooperates with them in matters of common concern, such as
their preparation for action in times of armed conflict, tracing and reuniting families and spreading knowledge
of international humanitarian law and the Movement’s Fundamental Principles. In armed conflict and other
situations of violence, the ICRC is responsible for helping them boost their capacity to meet the increased need
for humanitarian aid.

Often it is thanks to the National Societies’ presence, resources, local knowledge and motivation that
the ICRC can successfully carry out its work in the field. National Societies may also be involved in
international operations via the ICRC, the Federation or the National Society of the country in question.
The ICRC benefits from a unique worldwide network made up of all the National Societies. Cooperation and
coordination within the Movement help make the best possible use of the capacity of all members.
In accordance with the Movement’s agreements and rules, the ICRC directs and coordinates international relief
activities in “international and non-international armed conflicts” and in situations of “internal strife and their
direct results.” It also directs and coordinates activities aiming to restore family links in any situation requiring
an international emergency response.

The ICRC thus has two levels of responsibility:

 doing the humanitarian work that derives from its own mandate and its specific areas of competence;
 coordinating the international operations of the Movement’s components.

The Fundamental Principles of the International Red Cross and Red Crescent Movement

The ICRC’s endeavour is guided by seven Fundamental Principles, which the organization shares with the other
components of the Movement. The principles – humanity, impartiality, neutrality, independence, voluntary
service, unity and universality – are set out in the Movement Statutes and constitute the common values that
distinguish the Movement from other humanitarian organizations. The Movement has given the ICRC the task
of upholding and disseminating these principles. The first four, which are set out below, are those most
commonly cited by the ICRC and are specifically mentioned in its mission statement:

 Humanity is the supreme principle. It is based on respect for the human being and encapsulates the
ideals and aims of the Movement. It is the main driving force behind the ICRC’s work.
 Impartiality, a principle that rejects any form of discrimination, calls for equal treatment for people in
distress, according to their needs. It enables the ICRC to prioritize its activities on the basis of the
degree of urgency and the types of needs of those affected.
  Neutrality enables the ICRC to keep everyone’s trust by not taking sides in hostilities or controversies of
a political, racial, religious or ideological nature. Neutrality does not mean indifference to suffering,
acceptance of war or quiescence in the face of inhumanity; rather, it means not engaging in
controversies that divide peoples. The ICRC’s work benefits from this principle because it enables the
organization to make more contacts and gain access to those affected.
 The ICRC’s independence is structural: the Committee’s members are all of the same nationality and
they are recruited by co-optation. The ICRC is therefore independent of national and international
politics, interest groups, and any other entity that may have some connection with a situation of
violence. This gives the ICRC the autonomy it needs to accomplish the exclusively humanitarian task
entrusted to it with complete impartiality and neutrality.

Scope of work and criteria for taking action

There are four different situations in which the ICRC takes action:

1. The ICRC’s endeavour to help the victims of international armed conflict and non-international armed
conflict is at the heart of its mission. The ICRC offers its services on the basis of international
humanitarian law, and after taking due account of the existing or foreseeable need for humanitarian
aid.[5]
2. In other situations of violence, the ICRC offers its services if the seriousness of unmet needs and the
urgency of the situation warrant such a step. It also considers whether it can do more than others owing
to its status as a specifically neutral and independent organization and to its experience. In these
situations, its offer of services is based not on international humanitarian law but on the Statutes of the
Movement.[6]
3. If a natural or technological disaster or a pandemic occurs in an area where the ICRC has an operational
presence, meaning it can deploy quickly and make a significant contribution, the organization steps in
with its unique capabilities, to the extent it is able and in cooperation with the Movement. It generally
takes action during the emergency phase only.
4. In other situations, it makes its own unique contribution to the efforts of all humanitarian agencies,
especially within its fields of expertise such as tracing work and disseminating international
humanitarian law and the Fundamental Principles. These are all fields in which it has an explicit
mandate.

The ICRC sets priorities on the basis of the following criteria:

 the extent of victims’ suffering and the urgency of their needs: the principle of impartiality, mentioned
in humanitarian law, remains the pillar of the ICRC’s work, which is non-discriminatory and
proportionate to the needs of the people requiring protection and assistance;
 its unique capabilities deriving from its distinctiveness as a neutral and independent organization and
intermediary and its experience in assisting the victims of armed conflict (local knowledge, human
resources, logistics, tracing work, etc.). The particular merit of the ICRC, which results from its
principles and its operational experience, is recognized by the international community. It fits into the
scheme of an environment for humanitarian work that is characterized by numerous very different
agencies;
 the legal basis for its work: the ICRC endeavours to take action in situations where international
humanitarian law is applicable and carefully considers the advisability of taking action in the context of
the direct results of these situations and in other situations of violence not covered by international
humanitarian law (internal disturbances and tensions). In all cases, it tailors its action according to the
criteria set out above.

Operational considerations and constraints (such as impact on other activities, whether the ICRC has been
invited to take action, and security issues) can be added to these criteria.

Strategies for fulfilling the mission:

From comprehensive analysis to specific activities

A comprehensive analysis

For any action to be taken, a comprehensive analysis of the situation, the actors present, the stakes and the
dynamics must be carried out. This enables the ICRC to identify the people adversely affected and their needs.
It requires a clear understanding of the problems’ causes and a good knowledge of local facilities, their
capabilities and their potential. The ICRC endeavours to obtain an overall perspective of an issue of
humanitarian concern by looking at all the aspects and at the different responses that would be suitable.

A number of factors should be considered: social, economic, political, cultural, security, religious and ethnic,
among others. Analysis should also take account of the interdependence of local, regional and international
factors affecting a situation of conflict or any other situation of violence.

Analysis provides a basis for deciding on an overall strategy, with specific priorities and objectives, and
determines the types of problem and/or the categories of needs on which the ICRC is going to concentrate its
efforts and its resources. It is then a matter of developing a strategy aimed not only at addressing the direct
consequences of problems, but also – as far as possible within the framework of neutral and independent
humanitarian activities – their origins and causes.

In so doing, the ICRC must first exploit its strong points and the opportunities offered by the local
environment, and second try to minimize its weaknesses and neutralize or circumvent external difficulties.
Because of the complementary role played by partners in and outside the Movement, the strong and weak
points of these partners must also be taken into account in strategy discussions.

Depending on what needs to be done, the various activities either start simultaneously or consecutively.

Four approaches set out in the mission statement that allow the ICRC to fulfil its purpose

As described in the ICRC’s mission statement, the organization combines four approaches in its overall strategy
after analysing a situation in order to, directly or indirectly, in the short, medium or long term, ensure respect
for the lives, dignity, and physical and mental well-being of victims of armed conflict and other situations of
violence.

Protecting the lives and dignity of victims of armed conflict and other situations of violence

The protection approach

[See ICRC, Protection Policy]

 In order to preserve the lives, security, dignity, and physical and mental well-being of victims of armed
conflict and other situations of violence, this approach aims to ensure that authorities and other actors
fulfil their obligations and uphold the rights of individuals.
 It also tries to prevent or put an end to actual or probable violations of international humanitarian law
or other bodies of law or fundamental rules protecting people in these situations.
 It focuses first on the causes or circumstances of violations, addressing those responsible and those who
can influence them, and second on the consequences of violations.
Assisting victims of armed conflict and other situations of violence

The assistance approach

[See ICRC, Assistance Policy]

 The aim of assistance is to preserve life and/or restore the dignity of individuals or communities
adversely affected by armed conflict or other situations of violence.
 Assistance activities principally address the consequences of violations of international humanitarian
law and other relevant bodies of law. They may also tackle the causes and circumstances of these
violations by reducing exposure to risk.
 Assistance covers the unmet essential needs of individuals and/or communities as determined by the
social and cultural environment. These needs vary, but responses mainly address issues relating to
health, water, sanitation, shelter and economic security by providing goods and services, supporting
existing facilities and services and encouraging the authorities and others to assume their
responsibilities.

Directing and coordinating the Movement’s international relief efforts in armed conflict and
other situations of violence

The cooperation approach

 The aim of cooperation is to increase the operational capacities of National Societies, above all in
countries affected or likely to be affected by armed conflict or other situations of violence. A further aim
is to increase the ICRC’s capacity to interact with National Societies and work in partnership with them.
 The cooperation approach aims to optimize the humanitarian work of Movement components by
making the best use of complementary mandates and skills in operational matters such as protection,
assistance and prevention.
 It involves drawing up and implementing the policies of the Movement that are adopted during its
statutory meetings and strengthening the capacities of the National Societies, helping them to adhere at
all times to the Fundamental Principles.

Endeavouring to prevent suffering by promoting, reinforcing and developing international

humanitarian law and universal humanitarian principles

The prevention approach

 The aim of prevention is to foster an environment that is conducive to respect for the lives and dignity
of those who may be adversely affected by armed conflict and other situations of violence, and that
favours the work of the ICRC.
 This approach aims to prevent suffering by influencing those who have a direct or indirect impact on
the fate of people affected by these situations. This generally implies a medium or long-term
perspective.
 In particular, the prevention approach involves communicating, developing, clarifying and promoting
the implementation of international humanitarian law and other applicable bodies of law, and
promoting acceptance of the ICRC’s work.

Combining activities: Multidisciplinarity

Each activity responds, in humanitarian terms, to a specific problem or to common problems. Each approach
uses its own implementation strategies. These strategies combine different activities from the four programmes
detailed in the annual planning tool: protection, assistance, prevention and cooperation. Thus, a protection
strategy could also include activities from the assistance, prevention or cooperation programmes. Digging wells
in a camp for the displaced may be one aspect of an assistance programme and may be intended to tackle the
lack of water. It would therefore form part of the assistance approach. However, this activity could equally be
intended primarily to protect people exposed to violence while looking for water outside the camp. It therefore
also forms part of the protection approach.

Combining activities is particularly important. The ICRC is duty bound to use all means at its disposal,
according to each situation and to the priorities and objectives identified. Furthermore, the different
approaches are of mutual assistance: for example, ICRC staff may receive information on violations of
international humanitarian law while carrying out assistance work and this can then provide the grounds for
making representations to the authorities, which is part of the protection approach. In conflict situations,
assistance activities often take on a protection nature, and vice versa, to the point of being inextricably linked.
It was after all to the ICRC that the Movement assigned the task of endeavouring at all times to protect and
assist victims of these events.

Combining activities is often supported by what the ICRC calls its humanitarian diplomacy. The aim is to
influence – and if necessary modify – the political choices of States, armed groups, and international and
supranational organizations in order to enhance compliance with international humanitarian law and to
promote the ICRC’s major objectives. To that end, the ICRC encourages the various services and hierarchical
levels at headquarters and its network of delegations to increase dialogue with these entities on general issues
of concern to it. The essential message of humanitarian diplomacy is the same for all delegations, whatever
their operational priorities.
Coordination of humanitarian activities

Both from headquarters and in the field, the ICRC coordinates its activities with other humanitarian
organizations in order to improve the lives, directly or indirectly, of victims of armed conflict and other
situations of violence. Coordination is only possible as far as the strictly humanitarian approach of the ICRC, as
an impartial, neutral and independent organization, allows. Authority cannot be ceded to any other entity or
group of entities.

Modes of action

In keeping with the emphasis it places on complementary roles, the ICRC takes into account its partners’ (in
and outside the Movement) strong and weak points and their fields of expertise in its strategic discussions.

The ICRC’s strategy is based on combining “modes of action” and on selecting the appropriate activities
depending on the approach (or approaches) chosen. Modes of action are the methods or means used to
persuade authorities to fulfil their obligations towards individuals or entire populations.

The ICRC’s modes of action are: raising awareness of responsibility (persuasion, mobilization, denunciation),
support, and substitution (direct provision of services). The ICRC does not limit itself to any one of them; on
the contrary, it combines them, striking a balance between them either simultaneously or consecutively.

1. The aim of raising awareness of responsibility is to remind people of their obligations and, where
necessary, to persuade them to change their behaviour. This translates into three methods:
a. Persuasion aims to convince someone to do something which falls within his area of
responsibility or competence, through bilateral confidential dialogue. This is traditionally
the ICRC’s preferred mode of action.
 b. The organization may also seek outside support, through mobilization of influential third parties
(e.g. States, regional organizations, private companies, members of civil society or religious
groups who have a good relationship with the authorities in question). The ICRCchooses such
third parties with care, contacting only those who it thinks will be able to respect the
confidential nature of the information that they receive.
c. Faced with an authority which has chosen to neglect or deliberately violate its obligations,
persuasion (even with the mobilization of support from influential third parties) may not be
effective. In certain circumstances, therefore, the ICRC may decide to break with its tradition of
confidentiality and resort to public denunciation.[7] This mode of action is used only as part of
the protection approach, which focuses on the imminent or established violation of a rule
protecting individuals.
2. If authorities are unable to take action, the ICRC provides support where necessary to enable them to
assume their responsibilities.
3. When the competent authorities do not take or are unable to take appropriate measures (owing to lack
of means, or unwillingness, or when no such authorities exist), the ICRC takes direct action in their
place (substitution) to meet the needs of the people or populations affected. If the situation is critical,
the ICRC acts first and then speaks to the authorities to persuade them to take appropriate measures or
to help them examine possible solutions.

Guidelines for action

The above-mentioned strategy is implemented with consideration for the following guidelines:

1. The ICRC’s humanitarian work is impartial, neutral and independent. Experience has taught it that this
approach offers the best chance of being accepted during an armed conflict or other situation of
violence, in particular given the risk that actors at a local, regional or international level may become
polarized or radicalized. The integration of political, military and humanitarian means as recommended
by some States is therefore a major source of difficulty for the ICRC. The organization insists on the
need to avoid a blurring of lines while still allowing for the possibility of complementary action.
2. Many of the ICRC’s tasks are carried out close to the people concerned – in the field, in other words,
where the organization has better access to them. The individuals and communities concerned must be
consulted in order to better establish their needs and interests, and they should be associated with the
action taken. Their value systems, their specific vulnerabilities and the way they perceive their needs
must all be taken into consideration. The ICRC favours a participatory approach aimed at building local
capacities.
3. The ICRC has a universal vocation. Its work is not limited to certain places, or to certain types of people
(such as children or refugees). With a presence in numerous regions of the world, the ICRChas an
overall vision that enables it to undertake comprehensive analysis. The organization must have a
coherent approach everywhere it works if it is to appear transparent and predictable. However, this
does not mean that ICRC activities are uniform. Taking the context into consideration is still a key
aspect of analysis and strategy.
4. The ICRC gets involved during the emergency phase and stays for as long as is necessary. However, the
organization is careful to ensure that its involvement does not dissuade the authorities from fully
assuming their responsibilities or the communities affected from relying on their usual coping
mechanisms. It also takes care not to get in the way of other organizations and actors who are building
up civil society’s resources. Measures are taken so that the ICRC is able to leave the scene in an
appropriate manner when the time comes.
5. The ICRC engages in dialogue with all those involved in an armed conflict or other situation of violence
who may have some influence on its course, whether they are recognized by the community of States or
not. No one is excluded, not only because engaging in dialogue does not equate to formal recognition
but also because multiple and varied contacts are essential for assessing a situation and for
guaranteeing the safety of ICRC activities and personnel. The ICRCmaintains a network of contacts
locally, regionally and internationally. In the event of violations of international humanitarian law or
other bodies of law or other fundamental rules protecting people in situations of violence,
the ICRC attempts to influence the perpetrators. In the first instance, it will take bilateral confidential
 action.[8] When it comes to confidential action and to communication with the public, the ICRC wants
to promote transparency and present itself as an organization acting in a credible and predictable
manner. Moreover, reflecting the interest that States have in the unique status and role of the ICRC, the
organization’s right to abstain from giving evidence has been recognized by several sources of
international law.
6. While doing what it can to help needy people, the ICRC also takes into consideration the efforts of
others since there is a wide variety of agencies in the humanitarian world. The main objective of
interacting with other providers of aid is to make the best use of complementary efforts in order to meet
needs. Interacting should provide the basis for building on the skills of each and hence for obtaining the
best possible results, then continue to respond to needs in the long term through programme handover.
Interaction should therefore be based on transparency, equality, effective operational capacities and a
complementary relationship between organizations. It starts with – but is not limited to – the
Movement and its universal network. Indeed, the other components emerge as the ICRC’s natural and
preferred partners, with whom it would like to develop and strengthen a common identity and
vision.[9]
7. Through its work, the ICRC bears a certain responsibility for the individuals or entire populations it
endeavours to protect and assist. Its fundamental concern is to have a genuinely positive impact on
their lives. It has set up a framework of accountability and tools for planning, monitoring and assessing
its actions; these help it examine its performance and results and hence constantly improve the quality
of its work. The ICRC evaluates all of its activities using various criteria and indicators, including
thresholds of success and failure, so that it can become more effective and find the most appropriate
way of answering to beneficiaries and donors. Its work is regularly assessed, and reoriented if
necessary.

[Source: ICRC, The ICRC. Its Mission and Work, March 2009; available at http://www.icrc.org; footnotes
partially omitted]

Art 5 7. Any subsequent mention in this Protocol of a Protecting Power includes also a substitute.

Customary IHLaw Rule 124. ICRC Access to Persons Deprived of Their Liberty
Rule 124.
A. In international armed conflicts, the ICRC must be granted regular access to all persons deprived
of their liberty in order to verify the conditions of their detention and to restore contacts between
those persons and their families.
B. In non-international armed conflicts, the ICRC may offer its services to the parties to the conflict
with a view to visiting all persons deprived of their liberty for reasons related to the conflict in order
to verify the conditions of their detention and to restore contacts between those persons and their
families.

Summary
State practice establishes these rules as norms of customary international law applicable in international
and non-international armed conflicts respectively.

International armed conflicts

The right of the ICRC to visit detainees in international armed conflicts is provided for in the Third and
Fourth Geneva Conventions.[1] According to these provisions, the ICRC has full liberty to select the places
it wishes to visit and must be able to interview the detainees without witnesses. The duration and frequency
of such visits may not be restricted. However, according to the Third Geneva Convention, visits may be
refused for reasons of imperative military necessity, but only as an exceptional and temporary
measure.[2] The right of the ICRC to visit persons deprived of their liberty is also recognized in other
treaties and instruments.[3]
Numerous military manuals recognize the right of the ICRC to visit detainees.[4] This right is supported by
official statements and other practice.[5] It is also confirmed by the numerous visits to prisoners of war,
civilian internees and security detainees carried out regularly by the ICRC in countries affected by
international armed conflict all over the world.
In 1981, in a resolution on humanitarian activities of the ICRC for the benefit of victims of armed conflicts,
the 24th International Conference of the Red Cross deplored the fact that “the ICRC is refused access to
the captured combatants and detained civilians in the armed conflicts of Western Sahara, Ogaden and later
on Afghanistan”.[6]

Non-international armed conflicts

There is no specific treaty provision requiring access by the ICRC to detainees in non-international armed
conflicts. However, on the basis of common Article 3 of the Geneva Conventions, the ICRC may “offer its
services” to the parties to the conflict.[7] According to the Statutes of the International Red Cross and Red
Crescent Movement, adopted by consensus in 1986 by the 25th International Conference of the Red Cross,
it is the role of the ICRC
to endeavour at all times – as a neutral institution whose humanitarian work is carried out particularly in time of
international and other armed conflicts or internal strife – to ensure the protection of and assistance to military
and civilian victims of such events and of their direct results.[8]
On this basis, the ICRC systematically requests access to persons deprived of their liberty in connection
with non-international armed conflicts, and such access is generally granted, for example, in relation to the
conflicts in Algeria, Afghanistan, Chechnya, El Salvador, Nicaragua, Nigeria, Rwanda and
Yemen.[9] Conditions are often laid down in formal agreements, such as the agreements concluded in the
context of the conflicts in the former Yugoslavia and the Ashgabat Protocol on Prisoner Exchange in
Tajikistan.[10] There are also numerous examples of armed opposition groups and separatist entities
according the ICRC access to persons held in detention.[11]
The UN Security Council, UN General Assembly and UN Commission on Human Rights, as well as the
European Parliament and the Organization for Security and Cooperation in Europe, have r equested ICRC
access to detainees in the context of several non-international armed conflicts, in particular in Afghanistan,
Chechnya, Rwanda, Tajikistan and the former Yugoslavia.[12] In 1995, the UN Security Council
condemned “in the strongest possible terms” the failure of the Bosnian Serb party to comply with its
commitment in respect of access to detainees.[13]
In a resolution adopted in 1986, the 25th International Conference of the Red Cross appealed to the parties
involved in armed conflicts “to grant regular access to the ICRC to all prisoners in armed conflicts covered
by international humanitarian law”.[14]
The purpose of ICRC visits is to implement other existing rules of customary international law, in cluding the
prevention of enforced disappearances, extra-judicial executions, torture and other cruel, inhuman or
degrading treatment or punishment, monitoring the standard of detention conditions and the restoration of
family links through the exchange of Red Cross messages.
It can therefore be concluded that an ICRC offer to visit persons deprived of their liberty in the context of a
non-international armed conflict must be examined in good faith and may not be refused arbitrarily. [15]

Conditions
When granted access to detainees, the ICRC visits them in accordance with a number of established
operational principles. The standard terms and conditions under which the ICRC conducts visits include:
• access to all persons deprived of their liberty for reasons related to armed conflict, at all stages of their
detention and in all places where they are held;
• the possibility of talking freely and in private with the detainees of its choice;
• the possibility of registering the identity of the persons deprived of their liberty;
• the possibility of repeating its visits on a regular basis;
• authorization to inform the family of the detention of a relative and to e nsure the exchange of news
between persons deprived of their liberty and their families, whenever necessary. [16]
These operational principles are the result of the ICRC’s long-standing practice in this field and aim to
attain the humanitarian objectives of those visits. The ICRC considers these principles as essential
conditions for its visits both in international armed conflicts (where some of these conditions are explicitly
set forth in the Geneva Conventions) and in non-international armed conflicts.

VI. Repatriation of prisoners of war

Introductory text
As prisoners of war are only detained to stop them from taking part in hostilities, they have to be released and
repatriated when they are unable to participate, i.e. during the conflict for health reasons and of course as soon
as active hostilities have ended. Under the influence of human rights law and refugee law it is today admitted
that those fearing persecution may not be forcibly repatriated. As this exception offers the Detaining Power
room for abuse and risks rekindling mutual distrust, it is suggested that the prisoner's wishes are the
determining factor, but it can be difficult to ascertain those wishes and what will happen to the prisoner if the
Detaining Power is unwilling to grant him/her asylum. On the latter point, many argue that a prisoner of war
who freely expresses his/her will not to be repatriated loses prisoner-of-war status and becomes a civilian who
remains protected under Convention IV until resettlement

DURING HOSTILITIES

Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.

GENERAL OBSERVATIONS

ARTICLE 109 [ Link ]

Subject to the provisions of the third paragraph of this Article, Parties to the conflict are bound to send back to
their own country, regardless of number or rank, seriously wounded and seriously sick prisoners of war, after
having cared for them until they are fit to travel, in accordance with the first paragraph of the following Article [
Link ].
Throughout the duration of hostilities, Parties to the conflict shall endeavour, with the cooperation of the neutral
Powers concerned, to make arrangements for the accommodation in neutral countries of the sick and wounded
prisoners of war referred to in the second paragraph of the following Article. They may, in addition, conclude
agreements with a view to the direct repatriation or internment in a neutral country of able-bodied prisoners of
war who have undergone a long period of captivity.
No sick or injured prisoner of war who is eligible for repatriation under the first paragraph of this Article, may be
repatriated against his will during hostilities.

Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.

ACTIVITY AFTER REPATRIATION

ARTICLE 117 [ Link ]

No repatriated person may be employed on active military service.

Cuba, Status of Captured “Guerrillas”

That same evening, I watched the surrender of hundreds of Batistianos from a small-town garrison. They were
gathered within a hollow square of rebel Tommy-gunners and harangued by Raul Castro:

“We hope that you will stay with us and fight against the master who so ill-used you. If you decide to refuse this
invitation – and I am not going to repeat it – you will be delivered to the custody of the Cuban Red Cross
tomorrow. Once you are under Batista’s orders again, we hope that you will not take arms against us. But, if
you do, remember this:

“We took you this time. We can take you again. And when we do, we will not frighten or torture or kill you ... If
you are captured a second time or even a third ... we will again return you exactly as we are doing now.”
Discussion

1. Under IHL, do those participating in hostilities in a non-international armed conflict, if captured,

receive prisoner-of-war status? What could Raul Castro have done with those captured here? May they
be convicted for having fought for the wrong cause?
2. Is what he did lawful? Do his actions even go beyond the law applicable in international armed
conflicts?
3.
a. Does IHL protect a prisoner of war’s duty of allegiance towards the power on which he depends?
May a Detaining Power allow a prisoner of war to violate this duty? May it encourage him to do
so? (GC III, Art. 87)
b. If a prisoner of war changes his allegiance and professes, of his own free will, allegiance to the
Detaining Power, does he lose his rights under Convention III? May he be allowed to enroll in
the armed forces of the (former) Detaining Power? (GC III, Arts 7, 23, 52 and 130)
4. According to IHL, may prisoners of war again take up arms once they have been repatriated? (GC I, Art.
14; GC III, Art. 117) If they do so, what is their fate if they are recaptured?
5. What are the risks and advantages of doing what Raul Castro did? Will it facilitate his victory?
6. Is the role assigned here to the Cuban Red Cross appropriate? Would it have been more appropriate for
the International Committee of the Red Cross to perform this function? Why? (Statutes of the
International Red Cross and Red Crescent Movement, Arts 3 and 5 [See Statutes of the International
Red Cross and Red Crescent Movement]
7. PART I - PRINCIPLES FOR DIRECT REPATRIATION AND ACCOMMODATION IN NEUTRAL
COUNTRIES
8. Annex I [ Link ] : Model agreement concerning direct repatriation and accommodation in neutral
countries of wounded and sick prisoners of war (see Article 110 [ Link ] )

A. Direct repatriation

The following shall be repatriated direct:

(1) All prisoners of war suffering from the following disabilities as the result of trauma: loss of limb,
paralysis, articular or other disabilities, when this disability is at least the loss of a hand or a foot, or the
equivalent of the loss of a hand or a foot.

Without prejudice to a more generous interpretation, the following shall be considered as equivalent to
the loss of a hand or a foot:

(a) Loss of a hand or of all the fingers, or of the thumb and forefinger of one hand; loss of a foot, or of
all the toes and metatarsals of one foot.

(b) Ankylosis, loss of osseous tissue, cicatricial contracture preventing the functioning of one of the
large articulations or of all the digital joints of one hand.

(c) Pseudarthrosis of the long bones.

(d) Deformities due to fracture or other injury which seriously interfere with function and weight-bearing
power.

(2) All wounded prisoners of war whose condition has become chronic, to the extent that prognosis
appears to exclude recovery -- in spite of treatment -- within one year from the date of the injury, as, for
example, in case of:

(a) Projectile in the heart, even if the Mixed Medical Commission should fail, at the
time of their examination, to detect any serious disorders.

(b) Metallic splinter in the brain or the lungs, even if the Mixed Medical
Commission cannot, at the time of examination, detect any local or general
reaction.

(c) Osteomyelitis, when recovery cannot be foreseen in the course of the year
following the injury, and which seems likely to result in ankylosis of a joint,
or other impairments equivalent to the loss of a hand or a foot.

(d) Perforating and suppurating injury to the large joints.

(e) Injury to the skull, with loss or shifting of bony tissue.

(f) Injury or burning of the face with loss of tissue and functional lesions.

(g) Injury to the spinal cord.

(h) Lesion of the peripheral nerves, the sequelae of which are equivalent to the
loss of a hand or foot, and the cure of which requires more than a year from the
date of injury, for example: injury to the brachial or lumbosacral plexus, the median
or sciatic nerves, likewise combined injury to the radial and cubital nerves or
to the lateral popliteal nerve (N.peroneus communis) and medial popliteal
nerve (N. tibialis); etc. The separate injury of the radial (musculo-spiral),
cubital, lateral or medial popliteal nerves shall not, however, warrant
repatriation except in case of contractures or of serious neurotrophic
disturbance.

(i) Injury to the urinary system, with incapacitating results.

(3) All sick prisoners of war whose condition has become chronic to the extent that prognosis seems to
exclude recovery -- in spite of treatment -- within one year from the inception of the disease, as, for
example, in case of:

(a) Progressive tuberculosis of any organ which, according to medical prognosis,

cannot be cured, or at least considerably improved, by treatment in a neutral
country.

(b) Exudate pleurisy.

(c) Serious diseases of the respiratory organs of non-tubercular etiology, presumed

incurable, for example: serious pulmonary emphysema, with or without bronchitis;
chronic asthma *; chronic bronchitis * lasting more than one year in captivity;
bronchiectasis *; etc.

(d) Serious chronic affections of the circulatory system, for example: valvular
lesions and myocarditis *, which have shown signs of circulatory failure during
captivity, even though the Mixed Medical Commission cannot detect any such signs at
the time of examination; affections of the pericardium and the vessels (Buerger's
disease, aneurism of the large vessels); etc.

(e) Serious chronic affections of the digestive organs, for example: gastric or
duodenal ulcer; sequelae of gastric operations performed in captivity; chronic
gastritis, enteritis or colitis, having lasted more than one year and seriously
affecting the general condition; cirrhosis of the liver; chronic cholecystopathy *;
etc.

(f) Serious chronic affections of the genito-urinary organs, for example:

chronic diseases of the kidney with consequent disorders; nephrectomy because
of a tubercular kidney; chronic pyelitis or chronic cystitis; hydronephrosis or
pyonephrosis; chronic grave gynaecological conditions; normal pregnancy and
obstetrical disorder, where it is impossible to accommodate in a neutral
country; etc.

(g) Serious chronic diseases of the central and peripheral nervous system, for
example: all obvious psychoses and psychoneuroses, such as serious hysteria,
serious captivity psychoneurosis, etc., duly verified by a specialist *; any
epilepsy duly verified by the camp physician *; cerebral arteriosclerosis;
chronic neuritis lasting more than one year; etc.

(h) Serious chronic diseases of the neuro-vegetative system, with considerable

diminution of mental or physical fitness, noticeable loss of weight and general
asthenia.

(i) Blindness of both eyes, or of one eye when the vision of the other is less than 1 in
spite of the use of corrective glasses; diminution of visual acuity in cases where
it is impossible to restore it by correction to an acuity of 1/2 in at least
one eye *; other grave ocular affections, for example: glaucoma, iritis,
choroiditis; trachoma; etc.

(k) Auditive disorders, such as total unilateral deafness, if the other ear does
not discern the ordinary spoken word at a distance of one metre *; etc.

(l) Serious affections of metabolism, for example: diabetes mellitus requiring

insulin treatment; etc.

(m) Serious disorders of the endocrine glands, for example: thyrotoxicosis; hypotyrosis;
Addison's disease; Simmonds' cachexia; tetany; etc.

(n) Grave and chronic disorders of the blood-forming organs.

(o) Serious cases of chronic intoxication, for example: lead poisoning, mercury
poisoning, morphinism, cocainism, alcoholism; gas or radiation poisoning;
etc.

(p) Chronic affections of locomotion, with obvious functional disorders, for example:
arthritis deformans; primary and secondary progressive chronic polyarthritis;
rheumatism with serious clinical symptoms; etc.

(q) Serious chronic skin diseases, not amenable to treatment.

(r) Any malignant growth.

(s) Serious chronic infectious diseases, persisting for one year after their
inception, for example: malaria with decided organic impairment, amoebic or
bacillary dysentery with grave disorders; tertiary visceral syphilis resistant to
treatment; leprosy; etc.

(t) Serious avitaminosis or serious inanition.

* The decision of the Mixed Medical Commission shall be based to a great extent on the records kept
by camp physicians and surgeons of the same nationality as the prisoners of war, or on an examination
by medical specialists of the Detaining Power.
 B. Accommodation in neutral countries

The following shall be eligible for accommodation in a neutral country:

(1) All wounded prisoners of war who are not likely to recover in captivity, but who might be cured or
whose condition might be considerably improved by accommodation in a neutral country.

(2) Prisoners of war suffering from any form of tuberculosis, of whatever organ, and whose treatment in
a neutral country would be likely to lead to recovery or at least to considerable improvement, with the
exception of primary tuberculosis cured before captivity.

(3) Prisoners of war suffering from affections requiring treatment of the respiratory, circulatory,
digestive, nervous, sensory, genito-urinary, cutaneous, locomotive organs, etc., if such treatment would
clearly have better results in a neutral country than in captivity.

(4) Prisoners of war who have undergone a nephrectomy in captivity for a non-tubercular renal
affection; cases of osteomyelitis, on the way to recovery or latent; diabetes mellitus not requiring insulin
treatment; etc.

(5) Prisoners of war suffering from war or captivity neuroses. Cases of captivity neurosis which are not
cured after three months of accommodation in a neutral country, or which after that length of time are
not clearly on the way to complete cure, shall be repatriated.

(6) All prisoners of war suffering from chronic intoxication (gases, metals, alkaloids, etc), for whom the
prospects of cure in a neutral country are especially favourable.

(7) All women prisoners of war who are pregnant or mothers with infants and small children.

The following cases shall not be eligible for accommodation in a neutral country:

(1) All duly verified chronic psychoses.

(2) All organic or functional nervous affections considered to be incurable.

(3) All contagious diseases during the period in which they are transmissible, with the exception of
tuberculosis.

PART II -- GENERAL OBSERVATIONS

[ Link ] II. GENERAL OBSERVATIONS

(1) The conditions given shall, in a general way, be interpreted and applied in as broad a spirit as possible.
Neuropathic and psychopathic conditions caused by war or captivity, as well as cases of tuberculosis in all
stages, shall above all benefit by such liberal interpretation. Prisoners of war who have sustained several
wounds, none of which, considered by itself, justifies repatriation, shall be examined in the same spirit, with
due regard for the psychic traumatism due to the number of their wounds.

(2) All unquestionable cases giving the right to direct repatriation (amputation, total blindness or deafness,
open pulmonary tuberculosis, mental disorder, malignant growth, etc.) shall be examined and repatriated as
soon as possible by the camp physicians or by military medical commissions appointed by the Detaining
Power.
(3) Injuries and diseases which existed before the war and which have not become worse, as well as war
injuries which have not prevented subsequent military service, shall not entitle to direct repatriation.

(4) The provisions of this Annex shall be interpreted and applied in a similar manner in all countries party to the
conflict. The Powers and authorities concerned shall grant to Mixed Medical Commissions all the facilities
necessary for the accomplishment of their task.

(5) The examples quoted under (I) above represent only typical cases. Cases which do not correspond exactly
to these provisions shall be judged in the spirit of the provisions of Article 110 of the present Convention, and
of the principles embodied in the present Agreement.

A. The Memorandum of May 7, 1983

[Source: Memorandum from the International Committee of the Red Cross to the States Parties to the Geneva
Conventions of August 12, 1949 concerning the conflict between Islamic Republic of Iran and Republic of Iraq,
Geneva, May 7, 1983]

APPEAL
Since the outbreak of the conflict between the Islamic Republic of Iran and the Republic of Iraq, the highest
authorities of both these States parties to the Geneva Conventions have several times confirmed their intention
to honour their international obligations deriving from those treaties.

Despite these assurances, the International Committee of the Red Cross, which has had a delegation in the
Islamic Republic of Iran and in the Republic of Iraq from the very start of the hostilities in 1980, has
encountered all kinds of obstacles in the exercise of the mandate devolving on it under the Geneva
Conventions, despite its repeated representations and the considerable resources which it has deployed in the
field.

Faced with grave and repeated breaches of international humanitarian law which it has itself witnessed or of
which it has established the existence through reliable and verifiable sources,

and having found it impossible to induce the parties to put a stop to such violations,

the ICRC feels in duty bound to make these violations public in this present Appeal to States and its attached
memorandum.

The ICRC wishes to stress that, pursuant to its invariable and published policy, it undertakes such overt steps
only in very exceptional circumstances, when the breaches involved are major and repeated, when confidential
representations have not succeeded in putting an end to such violations, when its delegates have witnessed the
violations with their own eyes (or when the existence and the extent of those breaches have been established by
reliable and verifiable sources) and, finally, when such a step is in the interest of the victims who must as a
matter of urgency be protected by the Conventions.

The ICRC makes this solemn Appeal to all States parties to the Geneva Conventions to ask them – pursuant to
the commitment they have undertaken according to Article 1 of the Conventions to ensure respect of the
Conventions – to make every effort so that:

 international humanitarian law is respected, with the cessation of these violations which affect the lives,
the physical and mental well-being and the treatment of tens of thousands of prisoners of war and
civilian victims of the conflict;
  the ICRC may fully discharge the humanitarian task of providing protection and assistance which has
been entrusted to it by the States;
 all the means provided for in the Conventions to ensure their respect are used to effect, especially the
designation of Protecting Powers to represent the belligerents’ interests in their enemy’s territory.

The ICRC fervently hopes that its voice will be heeded and that the vital importance of its mission and of the
rule of international humanitarian law will be apparent to all and fully recognized, in the transcending interest
of humanity and as a first step towards the restoration of peace.

MEMORANDUM

SITUATION OF PRISONERS OF WAR HELD

IN THE ISLAMIC REPUBLIC OF IRAN

According to the Iranian authorities they today hold 45,000 to 50,000 prisoners of war. The Third Geneva
Convention confers on those prisoners a legal status entitling them to specific rights and guarantees.

Registration and capture cards

One of the essential provisions of the Conventions demands that each prisoner of war be enabled, immediately
upon his capture or at the latest one week after his arrival in a camp, to send his family and the Central
Prisoners-of-War Agency a card informing them of his captivity and his state of health.

This operation proceeded normally at the beginning. However, the obstacle which the Iranian authorities
constantly put in the way of the ICRC delegates’ work led to a progressive decline in that activity from May
1982 onwards.

At present the ICRC has registered only 30,000 prisoners of war, leaving 15,000 to 20,000 families in the
agony of uncertainty, which is precisely what the imperative provisions of the Conventions are designed to
avoid.

Correspondence between prisoners of war and their families

The considerable delay and the holding up of mail, every aspect of which is regulated by the Convention,
aggravate the families’ worries and the prisoners’ distress.

Although thousands of messages are sent each month by Iraqi families through the ICRC and hence to the
Iranian military authorities for censorship and distribution, a great many prisoners of war complain they have
received no mail for many months. The ICRC is no longer able to exercise any supervision of the distribution
and collection of family messages.

ICRC visits to prisoner-of-war camps

The Third Geneva Convention stipulates that ICRC delegates shall be allowed, with no limitation of time or
frequency, to visit all places where prisoners of war are held and to interview the prisoners without witnesses.
In the Islamic Republic of Iran this essential provision is being violated.

The ICRC has lost track of the interned population since May 1982: only 7,000 prisoners of war have benefited
from regular visits by the ICRC.
Many places of internment have been opened since then but the ICRC has never had access to them and has
not even been notified of their existence.

Consequently the ICRC can no longer monitor the material living conditions and treatment of the Iraqi
prisoners of war interned in Iran.

Although there did occur at the end of 1982 one truncated visit during which the delegates were not permitted
to interview prisoners without witnesses, and two spot visits in March 1983, the latest complete visit to a
prisoner-of-war camp consistent with treaty rules dates back to May 1982.

The fact that it has not had access to the great majority of prisoners of war for more than a year, and the
systematic concealment of some categories of prisoners of war – high ranking officers, foreigners enlisted in
the Iraqi army – gives the ICRC cause to be profoundly concerned about the plight of those prisoners.

Treatment of prisoners of war

In a general way, the Iraqi prisoners of war, right from the time of their capture, are subjected to various forms
of ideological and political pressure – intimidation, outrages against their honour, forced participation in mass
demonstrations decrying the Iraqi Government and authorities – which constitute a serious attack on their
moral integrity and dignity. Such treatment, which runs counter to the spirit and the letter of the Convention,
has gone from bad to worse since September 1981.

Last but not least, concordant information from various sources and witnesses confirm the ICRC’s certainty
that some camps have been the scene of tragic events leading to the death or injury of prisoners of war.

Severely wounded and sick prisoners of war

The Third Geneva Convention states that “parties to the conflict are bound to send back to their own country,
regardless of numbers or rank, seriously wounded and seriously sick prisoners of war, after having cared for
them until they are fit to travel...”. Although there have been three repatriation operations – on 16 June, 25
August 1981 and 30 April 1983 – and despite the constitution of a mixed medical commission, most of the
severely wounded and sick prisoners of war have not been repatriated, as required by the Convention.

SITUATION OF IRANIAN PRISONERS OF WAR

AND IRANIAN CIVILIANS IN THE POWER OF THE REPUBLIC OF IRAQ

1. Prisoners of war
So far the ICRC has registered and visited at regular intervals some 6,800 prisoners.

Registration and capture cards

In general, these prisoners of war are registered by the ICRC within the time limit specified by the Convention.

Correspondence between prisoners of war and their families

After some initial difficulties, the exchange of messages between prisoners and their families has been
satisfactory for the last several months.
ICRC visits to prisoner-of-war camps

Every single month since October 1980, ICRC delegates have visited prisoners of war in a manner consistent
with Article 126 of the Third Geneva Convention, which specifies inter alia that the delegates shall be enabled
freely to interview prisoners of their choice without witnesses.

However, in the course of its activities in the Republic of Iraq, the ICRC realised that the Iraqi authorities have
never fully respected the Third Geneva Convention.

The ICRC has established with certainty that many Iranian prisoners of war have been concealed from it since
the beginning of the conflict. The ICRC has drawn up lists containing several hundred names of Iranian
prisoners of war incarcerated in places of detention to which the ICRC has never had access. Although several
dozen such prisoners have been returned to the camps and registered by the ICRC no acceptable answer has
been found to the problem of concealed prisoners.

Treatment of prisoners of war

In the prisoner-of-war camps the ICRC has noted some appreciable improvement in material conditions. On
the other hand, ill-treatment has frequently been observed and on at least three occasions disorders have been
brutally quelled, causing the death of two prisoners of war and injury to many others.

Severely injured and sick prisoners of war

The Third Geneva Convention states that “parties to the conflict are bound to send back to their own country,
regardless of numbers or rank, seriously wounded and seriously sick prisoners of war, after having cared for
them until they are fit to travel...”. Although there have been four repatriation operations – on 16 June,
25 August and 15 December 1981 and on 1 May 1983 – and despite the constitution of a mixed medical
commission, most of the severely wounded and sick prisoners of war have not been repatriated, as required by
the Convention.

2. Iranian civilians
Tens of thousands of Iranian civilians from the Khuzistan and the Kurdistan border regions [on Iranian
territory], residing in areas under Iraqi army control, have been deported to the Republic of Iraq, in grave
breach of the Fourth Geneva Convention.

The ICRC delegates have had only restricted access to a few of these people.

In the prisoner-of-war camps the ICRC has registered more than a thousand civilians, including women and
old men arrested in the occupied territories by the Iraqi army, deported into the Republic of Iraq and
unjustifiably deprived of their freedom since the beginning of the conflict.

GRAVE BREACHES COMMITTED BY BOTH PARTIES TO THE CONFLICT

Both in Iran and Iraq captured soldiers have been summarily executed. These executions were sometimes the
act of individuals involving a few soldiers fallen into enemy hands; there has sometimes been systematic action
against entire enemy units, on orders to give no quarter.
Wounded enemies have been slain or simply abandoned on the field of battle. In this respect the ICRC must
point out that the number of enemy wounded to which it has had access and whom it has registered in
hospitals in the territory of both belligerents is disproportionate to the number of registered able-bodied
prisoners in the camps or to even the most conservative estimates of the extent of the losses suffered by both
parties.

The Iraqi forces have indiscriminately and systematically bombarded towns and villages, causing casualties
among the civilian inhabitants and considerable destruction of civilian property. Such acts are inadmissible,
the more so that some were declared to be reprisals before being perpetrated.

Iraqi towns also have been the targets of indiscriminate shelling by Iranian armed forces.

Such acts are in total disregard of the very essence of international humanitarian law applicable in armed
conflicts, which is founded on the distinction between civilians and military forces.

Geneva, May 7, 1983

B. The Memorandum of February 10, 1984

[Source: Second Memorandum from the International Committee of the Red Cross to the States Parties to the
Geneva Conventions of August 12, 1949 concerning the conflict between Islamic Republic of Iran and Republic
of Iraq, Geneva, February 10, 1984]

On May 7, 1983, the International Committee of the Red Cross was compelled to address an appeal to all the
States Parties to the Geneva Conventions. With reference to the solemn undertaking of these States to respect
and ensure respect for the Conventions at all times, the ICRC asked them to make every effort to ensure the
rigorous application of International Humanitarian Law by the two belligerent states i.e. the Islamic Republic
of Iran on the one hand and the Republic of Iraq on the other, and to enable the ICRC to effectively perform its
humanitarian task of helping the great number of civilian and military victims of this conflict.

Nine months after making its first Appeal, the ICRC notes that the results hoped for have been achieved only to
a very limited degree, and it feels that the States Parties to the Conventions should be informed of the lack of
respect for the principles of Humanitarian Law in the Islamic Republic of Iran and the Republic of Iraq.

The ICRC wishes to stress that its two memoranda concern serious infringements of International
Humanitarian Law which are known to have occurred and which endanger the lives and liberty of the tens of
thousands of people caught up in this conflict, and which flout the very spirit and principles of that law. These
infringements, if unchecked, may, in time, bring into discredit those rules of law and universal principles which
the States parties to the Conventions laid down to provide human beings with a better defence against the evils
of war.

From its experience the ICRC is conscious that increasingly numerous violations of International
Humanitarian Law have invariably placed insurmountable obstacles in the way of peace negotiations, even
when all belligerents wished to end the conflict. For example, recent conflicts have been needlessly prolonged
because no agreement was reached on arrangements concerning prisoners of war. The ICRC thus calls upon
the States working towards the restoration of peace in the region to consider most carefully the problems which
will inevitably arise because of the infringements of the Geneva Conventions by the belligerents.

In particular, the ICRC would ask States, in the course of their dealings with each of the two parties to the
conflict, to broach the humanitarian questions which are hereby submitted to them. The States are also urged
to lend their active support to the ICRC’s efforts to help the victims of the conflict which is strictly within the
terms of the humanitarian mandate assigned to the ICRC through the Geneva Conventions. Finally, the ICRC
hopes that discussions will be held to designate Protecting Powers willing to undertake the tasks encumbent on
such States by the Geneva Conventions. Naturally, the ICRC would wish to work closely with the Protecting
Powers.

The ICRC is convinced that the States parties to the Conventions are aware of what is truly at stake in the steps
proposed, and that it will be their desire and intention to translate into action the commitment which they
undertook in adopting Article 1 common to the Four Geneva Conventions of 12 August 1949.

ISLAMIC REPUBLIC OF IRAN

A. Iraqi prisoners of war interned in the Islamic Republic of Iran

1. The activities of the International Committee of the Red Cross in favour of the Iraqi prisoners were
again suspended on 27 July 1983. The ICRC considers that, in general terms, it has not been able to
discharge its mandate as prescribed by the Third Geneva Convention relative to the treatment of
prisoners of war for almost two years.

At present, some 50,000 prisoners are without the international protection to which they are entitled by
virtue of their status.

In this connection, the ICRC is no longer able to perform the following tasks:


o To ascertain the precise number of prisoners of war and to ascertain how they are distributed
among various places of internment.
o To obtain information on the identity and state of health of each prisoner of war in order to
notify his family and the Iraqi Government.
o To monitor the material, psychological and disciplinary conditions of internment by means of
regular visits to the camps and interviews without witness with the prisoners.
o To draw up lists of prisoners of war who should quickly be repatriated because of severe wounds
or illness.
o To maintain effective surveillance of the flow of Red Cross messages between the prisoners and
their families.

These tasks of surveillance are all categorically stipulated in the Convention and constitute indispensable
requirements for the effective protection of prisoners by ICRC delegates.

2. Numerous facts and indications, when considered together, arouse great concern on the part of the
ICRC with regard to the fate of the prisoners and the authorities’ real reasons for preventing the ICRC
from carrying out its activities. The ICRC has noted the following specific points:
o
 The ICRC has constantly been denied access to certain categories of prisoners such as
high-ranking officers.
 Severe sentences have been passed on a number of prisoners. Despite repeated demands,
the ICRC has received neither notifications nor explanations which should, by law, have
been submitted to it.
 Serious incidents have occurred in certain camps. Furthermore, among the death
certificates issued by the Iranian authorities for members of the enemy armed forces
“killed in action”, the ICRC has received a number which were despatched very tardily
and without any comment in relation to persons who were known to have been interned
 in the Islamic Republic of Iran for many years, since they had been registered and visited
on several occasions by ICRC delegates.
 Ideological and political pressure, intimidation, systematic “re-education” and attacks on
the honour and dignity of the prisoners have remained a constant feature of life in the
camps, and even seem to increase as a result of the activities of certain persons having no
connection with the normal running of the camps. Representatives of a “department of
political and ideological education”, members of Iraqi opposition groups who have fled
to the Islamic Republic of Iran, and the official press all attempt to incite the prisoners
against their government. On many occasions, the ICRC has submitted to the highest
authorities of the Islamic Republic of Iran detailed and clearly reasoned requests that a
stop should be put to these practices which States, in drawing up the Third Geneva
Convention, agreed to ban. The ICRC has made the abolition of these practices a
condition for the resumption of its activities, since the discharge of its mandate is
incompatible and irreconcilable with attempts at political and ideological conditioning of
prisoners. To date, the ICRC has received no satisfactory reply to the written and oral
representations which it has made on the subject to the Government of the Islamic
Republic of Iran.

B. Iraqi civilian refugees in the Islamic Republic of Iran

The ICRC has failed in its attempts to bring aid to these groups, consisting mainly of Iraqi Kurds who have fled
from their home territory and are now living in camps in the Islamic Republic of Iran. The ICRC knows that
these groups are in great need of food and medicine. By virtue of their status as refugees from an enemy power,
these people come under the aegis of the Fourth Geneva Convention relative to the protection of civilians in
time of war. They should therefore be allowed to receive the aid which an organization such as the ICRC could
provide.

REPUBLIC OF IRAQ

A. Iranian prisoners of war held in the Republic of Iraq

1. Every month without fail since October 1980, ICRC delegates have visited Iranian prisoners of war, who
currently number 7,300 and are held in six internment camps. The visits take place in accordance with
the conditions laid down in Article 126 of the Third Geneva Convention, a main stipulation of which is
that the delegates should be able to talk freely and without witnesses with prisoners of their choice.

As a rule, prisoners of war are registered by the ICRC within a reasonably short time of being captured.

On the whole, the exchange of Red Cross messages between the prisoners and their families works well,
though delays which may sometimes be quite long are still caused by the Iraqi censorship procedure.

2. In the camps themselves, the ICRC has observed a number of significant improvements in the material
conditions of internment. Moreover, the authorities have taken steps to put an end to the random acts
of brutality to which the ICRC drew their attention on many previous occasions. Furthermore, an
improvement in disciplinary measures has been apparent since autumn 1983.
3. On 29 January 1984, 190 Iranian prisoners, 87 of whom were severely wounded or sick, were handed
over by the Iraqi authorities to the ICRC in Ankara for repatriation.
4. The ICRC is concerned by the fact that a large number of members of the enemy armed forces, both
officers and other ranks, some of whom were taken prisoner by the Iraqi armed forces at the beginning
of the conflict, are still being held in detention centres to which the ICRC is denied access. The ICRC has
regularly submitted to the government and military authorities of Iraq lists of names showing that
several hundred such prisoners of war exists. The ICRC mentions with satisfaction that at the end of
1983 it was allowed to register several dozens of these prisoners, who had been captured at the start of
the conflict and have now been placed in camps visited by the ICRC.
 The ICRC has good grounds to be concerned about the prisoners held in places to which it does not have
access. These prisoners are deprived of their most basic rights and, according to many mutually
corroborating sources of information, are held in conditions which do not meet the requirements of
humanitarian law.

B. Iranian civilians who have been deported to or taken refuge in the Republic of Iraq

1. During the conflict, several tens of thousands of Iranian civilians have been displaced from their homes
in the frontier areas of Khuzestan and Kurdistan to Iraqi territory.

The Iraqi authorities have accepted that in principle the ICRC should be present from now on among these
civilians, and considerable efforts have recently been made to improve the living conditions of these
civilians when it was necessary.

2. Since the start of the conflict, the ICRC has registered more than a thousand civilians in the prisoner-of-
war camps, including women and elderly men arrested in the territories occupied by the Iraqi armed
forces. Although it has been possible to repatriate several hundred of these people, an overall solution
to the problem still has to be found.

C. Bombing of civilian areas by the Iraqi armed forces

The Iraqi air force has continued to carry out regular indiscriminate bombing of Iranian built-up areas,
sometimes more than 200 kms from the front. The result has been loss of life, sometimes on a large scale, and
considerable destruction of purely civilian property. These deliberate attacks on civilians and civilian property
are sometimes designated as reprisals; they contravene the laws and customs of war, in particular with regard
to the basic principle that a distinction must be made between military objectives and civilian persons and
property.

Discussion

1.
a. What must States Parties do in order to fulfil their obligation under Art. 1 common to the
Conventions and Protocol I “to ensure respect” for IHL? What may they do? What may they not
do?
b. Must States Parties act to “ensure respect” for IHL only when the ICRC appeals to them to do
so? What meaning do ICRC appeals, such as the two Memoranda, have in terms of the
obligation of the States Parties? Does such an appeal mean that in certain situations the normal
and specific mechanisms for the implementation of IHL do not work?
c. What criteria would you suggest to the ICRC for deciding whether to issue an appeal to all States
Parties on violations in a specific situation?
d. Did the two Memoranda respect the Red Cross principles of neutrality and impartiality? Was it
necessary for the ICRC under those principles to criticize both Iran and Iraq? Because of the
denounced violations? Because under those two principles the ICRC may never criticize only one
side of an armed conflict?
e. In the Memoranda, is the revelation to all States Parties of facts the ICRC learned through its
visits to prisoners of war compatible with the ICRC’s working principle of confidentiality?
2.
a. Did Iran and Iraq have an obligation to designate Protecting Powers? Can you imagine why no
Protecting Powers were designated? (GC I-IV, Arts 8/8/8/9 respectively)
b. If a Protecting Power is designated, can it replace the ICRC for visits to prisoners of war? What
is the advantage of a Protecting Power acting parallel to the ICRC? What are the strong points of
a Protecting Power? What are the strong points of the ICRC? (GC III, Arts 10 and 126)
3.
 a. Has the ICRC a right to visit prisoners of war? Even those who do not want to be visited by the
ICRC? Why are ICRC visits important? (GC III, Arts 7 and 126; CIHL, Rule 124)
b. Can you imagine why Iran impeded ICRC visits to Iraqi prisoners of war? Why did Iran and Iraq
try to conceal certain categories of prisoners of war from the ICRC? Which categories? How may
the ICRC have learned about the existence of those hidden prisoners?
c. Why does the ICRC insist on visiting prisoners and interviewing them without witnesses? Does
the ICRC have a right to insist on the latter condition? (GC III, Art. 126) Should the ICRC
renounce interviewing without witnesses if it heightens tension between different groups of
prisoners?
4.
a. Do efforts of a Detaining Power to indoctrinate prisoners of war – to put them under ideological
and political pressure with the aim of turning them against their own government – violate IHL?
Even if no prohibited means (e.g., threats, intimidation, or deprivation of rights to which they
are entitled under Convention III) are used? Which provisions of Convention III are violated?
b. May prisoners of war sever their allegiance towards the Power on which they depend? What are
the risks and interests involved in answering this question? Does a severing of their allegiance
deprive them of their prisoner-of-war status? May they renounce their status? (GC III, Art. 7)
c. May a Detaining Power release prisoners of war who sever their allegiance to the power on
which they depend? (GC III, Arts 16 and 21; CIHL, Rule 128)
d. May prisoners of war voluntarily join the armed forces of the Detaining Power? Do they keep
their prisoner-of-war status if they do so? (GC III, Arts 7, 23, 52 and 130)
e. Has the Detaining Power a responsibility for the killing of prisoners who keep their allegiance by
prisoners who have severed their allegiance to the Power on which they depend? For killings of
the latter by the former? What action must the Detaining Power take to avoid such events? May
it or must it separate these two categories of prisoners? What are the risks of such a separation?
(GC III; Arts 13, 16, 22, 121 and 122)
5.
a. By which means does IHL ensure that a family is informed about the capture and detention of a
prisoner of war? May prisoners of war renounce some or all of those means used to inform their
families? What reasons could they have for doing so? (GC III, Arts 69, 70, 122 and 123; CIHL,
Rules 125 and 126)
b. Who must enable prisoners of war to fill in capture cards? Can capture cards be filled in even
when the ICRC is impeded from visiting prisoners of war? Has the ICRC a right to register
prisoners of war? Even those who do not wish to be registered? Why is the registration of
prisoners of war important to the ICRC? (GC III, Arts 70, 122, 123 and 126; CIHL, Rule 123)
c. Must death certificates for prisoners of war indicate the cause of death? For enemy soldiers
found dead on the battlefield? (GC I, Art. 16; GC II, Art. 19; GC III, Art. 120; CIHL, Rule 116)
6. Did Iran have an obligation to inform the ICRC about sentences passed against prisoners of war?
(GC III, Art. 107)
7.
a. Must a detaining power repatriate seriously wounded and seriously sick prisoners during the
hostilities? Why? Even if the enemy does not do so? (GC III, Arts 13(3), 109 and 110)
b. Who decides whether a prisoner of war is seriously wounded or seriously sick? What happens if
that body is unable to agree on who is seriously wounded or seriously sick? (GC III, Arts 110-113
and Annex II)
8.
a. Could Iraq lawfully detain Iranian civilians it found while its offensive advanced on Iranian
territory? In which cases? Could Iraq lawfully evacuate Iranian civilians living in Iranian
territories it controlled once Iraq had to retreat from those territories under the pressure of an
Iranian counter-offensive? At least those among them who were lawfully detained? (GC IV,
Arts 49 and 76-79)
b. May Iraq detain civilians in prisoner-of-war camps? If it respects all the provisions of
Convention IV applicable to them? (GC IV, Arts 76 and 84)
c. Are Iraqi civilian refugees in Iran protected persons under Convention IV? Under which
circumstances has the ICRC the right to assist them? (GC IV, Arts 4, 23 and 44; P I, Arts 70 and
73)
9.
 a. How can the ICRC know about summary executions of captured soldiers? When is a party to a
conflict responsible for executions of individual enemy soldiers, immediately after their capture,
by individual members of its armed forces who were not ordered to execute them? Were such
individual enemy soldiers prisoners of war? (Hague Convention IV, Art. 3; GC I-IV, Arts
49/50/129/146; GC III, Arts 5 and 12; CIHL, Rule 149)
b. How can the ICRC know that wounded enemies were executed or abandoned on the battlefield?
10.
a. Does the indiscriminate bombardment of towns and villages violate IHL, although neither Iran
nor Iraq were party to Protocol I? Does it make a difference for IHL that such towns were more
than 200 km away from the front line? Is the concept of a “military objective” different on the
front-line compared with 200 km away?
b. Were such bombardments even less admissible under IHL when they were announced as
reprisals? (GC IV, Art. 33(3); P I, Arts 51(6) and 52; CIHL, Rules 146-147) Under which
conditions do reprisals that would amount to violations of treaty-based IHL, are admissible
under customary IHL?
11. Do the violations of IHL mentioned in the two Memoranda “discredit the rules of IHL”? Did those rules
apparently have no influence on the Parties? Did they have a protective effect for the victims of the
conflict?

AGREEMENTS OF PARTIES

Case Study, Armed Conflicts in the former Yugoslavia

Paragraphs 1 to 10
[Case Study prepared by Marco Sassòli, first presented by the authors in August 1998 at Harvard University.]

[N.B.: The purpose of this Case Study is not to discuss the history of the conflicts or the facts but only the
applicable International Humanitarian Law, its relevance for the humanitarian problems arising in recent
armed conflicts, and the dilemmas faced by humanitarian actors. If any facts are insinuated by the following
questions, this is only done for training purposes. In addition, this Case Study is entirely based upon public
documents and statements made by the ICRC and other institutions to the general public.]

Map of Yougloslavia. The map has no political connotations.

© ICRC

1. In the late eighties tension rises in the Socialist Federal Republic of Yugoslavia:

 Economic crisis of the Yugoslav system of self-governing economy and economic tension between the richer
northern and the poorer southern Republics.
 Bloody riots in Kosovo (1981, 1989, 1990) by the large Albanian majority living in the historical heartland of
Serbia. Kosovo was an autonomous province within Serbia, but also a member of the Federal Republic of
 Yugoslavia. It held a population of 1,585,000 inhabitants in 1981 – date of the last census – 77% ethnic
Albanians and 13% ethnic Serbs. The 1974 constitution gave Kosovo considerable autonomy. During the 80s,
the Serb minority suffered discrimination in the hands of the provincial authorities controlled by Albanians,
who demanded more power and the status of a Republic for Kosovo. In 1989, constitutional reforms
withdrawing jurisdiction from the government of Kosovo over certain issues were adopted, despite strong
opposition from the Kosovo Albanian population which organized protests and strikes in response. In 1990,
the Serbian parliament suspended the Kosovo Assembly when the latter adopted a resolution declaring
Kosovo to be independent from Serbia.
 The publication of a Serbian nationalist Memorandum by the Serbian Academy of Sciences and the rise to
power of the Serbian nationalist politician Slobodan Milosevic in Serbia (1986).
 The disbanding of the communist one-party system with the formation of opposition parties in the
Republics of Slovenia and Croatia (1988) and multiparty elections in all six Republics bringing nationalist
parties to power.

In 1991, the fragmentation increases to such a degree that the Republics of Slovenia and Croatia want to
secede; the central Yugoslav institutions are increasingly blocked by a stalemate between the “Serb block” and
those Republics wanting to secede.

a. As tensions continue to rise, but before conflict breaks out openly, what can humanitarian organizations do
to lower tensions, to prevent the outbreak of an armed conflict, or to prevent violations of international
humanitarian law in the event that a conflict breaks out?

b. For an organization like the ICRC that wants to make sure it will be able to fulfill its mandate and be
accepted by all sides in the event that conflict breaks out, what are the limits to such preventive action?

c. How are the Croatian and Yugoslav authorities likely to react to proposals:

 to start a general information campaign on Human Rights?

 to train the Yugoslav Peoples Army, the Croatian forces, and local Serbian forces in Croatia in international
humanitarian law?
 to visit Kosovo Albanians detained by the authorities of Serbia?
 to visit Croats detained by the Yugoslav central authorities or local Serbian forces as well as Serbs detained
by the Croatian authorities in order to monitor their treatment?

d. According to IHL, once the resolution declaring Kosovo’s independence was adopted, has Kosovo become a
territory occupied either by the Socialist Federal Republic of Yugoslavia or by Serbia? (HR, Art. 42; GC IV, Art.
2(2); P I, Art. 1(4))

2. On June 26, 1991, Croatia declares its independence. In Croatia, the Serbian minority living in Eastern
Slavonia, Western Slavonia, and the Krajinas does not agree with a secession of Croatia and is ready to oppose
it violently. The Yugoslav People’s Army tries to hinder Slovenia and Croatia from seceding and to maintain
itself at least in parts of Croatia controlled by the Serb minority; first trying to intercede between Croatian and
local Serbian forces and later more and more openly supporting local Serbian forces. As a result, the Yugoslav
People’s Army obtained or maintained in fierce fighting control over one third of the territory of Croatia, while
in other parts of Croatia its troops had to retreat into their barracks where they were besieged.

a. Was the conflict in Croatia in fall 1991 of an international or a non-international character? (GC I-IV, Arts
2 and 3)

b. What role do the constitution of the former Yugoslavia (arguably implying a right for republics to secede),
the declaration of independence of Croatia of 26 June 1991, and the recognition of Croatia by third States (30
on 17.01.1992) have in answering question a.? Is the ICRC competent to answer this question? Should the UN
Security Council answer this question?

c. What dilemmas does the answering to this question create for any humanitarian organization? Does it
create different dilemmas for a Human Rights organization?

d. Would you answer this question if you were the ICRC? How could the ICRC otherwise ascertain the
application of the rules of the Geneva Conventions and Additional Protocols?

e. Were Croatian soldiers captured in December 1991 by the Yugoslav People’s Army prisoners of war? If
captured by Croatian forces, were members of local Serbian militias in Eastern Slavonia fighting with the
Yugoslav People’s Army prisoners of war? (GC III, Arts 2 and 4)

f. Was the part of the Croatian territory controlled by the Yugoslav People’s Army an occupied territory under
Convention IV?

3. In fall 1991, the Yugoslav People’s Army and local Serbian militias besieged and constantly bombarded the
town of Vukovar in the easternmost part of Croatia.

a. As a result, the Croatian soldiers defending Vukovar ran short of ammunition and together with the local
Croatian and Serbian civilian population, ran short of food and medical supplies. For which of those goods did
the Yugoslav People’s Army have an obligation to allow passage, and to what conditions could it subject such a
free passage? (GC IV, Art. 23; P I, Art. 70, CIHL Rule 55)

b. Would you, as a humanitarian organization, take the initiative of suggesting the evacuation towards the
west of local Croatian civilians? Which criteria should those civilians fulfill to be evacuated? What reactions to
such a proposal can be expected from the Croats and from the Yugoslav authorities? Do they have an obligation
to allow such an evacuation? Under what conditions? What reaction can be expected from local and
international public opinion?

c. The hospital of Vukovar is no longer able to cope with the number of wounded soldiers and civilians. The
Croatian and Yugoslav authorities are ready to allow the evacuation of the wounded as part of an agreement
under which Croatia simultaneously allows Yugoslav soldiers confined in their barracks in Croatian
towns since the beginning of the conflict to leave for Yugoslav-controlled territory. As a humanitarian
organization, would you suggest such an agreement? Would you let it be negotiated under your auspices?
Would you organize the evacuation of the wounded? Would you supervise the simultaneous withdrawal of
Yugoslav soldiers from their barracks? Under what conditions? What legal, political, and humanitarian
considerations have to be taken into account?

4. The ICRC, facing difficulties to qualify the conflict and the resulting inability to invoke the protective rules of
IHL in its operations, and trying to establish a humanitarian dialogue with the parties far from the cease-fire
and political negotiations, invites plenipotentiaries of the belligerent sides to Geneva in order to agree on rules
to be respected in the armed conflict as close as possible to those IHL provides for in international armed
conflicts and to discuss any other humanitarian problems.

a. What are the difficulties for the Croatian and the Yugoslav authorities in accepting such an invitation? How
can the ICRC overcome them? What difficulties can be expected during the negotiations?
b. Which rules of the law of international armed conflict can be expected to meet particular resistance by each
side? Would you suggest Art. 3(3) common to the Geneva Conventions as a legal basis for the agreement to be
negotiated? Doesn’t an agreement that falls short of the entire law of international armed conflict violate
6/6/6/7 respectively of the four Conventions?

c. What are the advantages and disadvantages of the “Memorandum of Understanding” finally concluded on
27 November 1991? For the war victims in the former Yugoslavia? For the ICRC? For IHL in the long run?

See Case - Former Yugoslavia, Special Agreements Between the Parties to the Conflicts [Part A.]

5. After the fall of Vukovar, the front-line approaches Ossijek. Again, the wounded flow towards the local
hospital, which is not spared by indiscriminate bombardments by the Yugoslav People’s Army and local
Serbian militias. The Yugoslav authorities claim that the Croatian army systematically places artillery positions
around the hospital to either shield them from Yugoslav attacks or to mobilize international public opinion
when the hospital is hit during Yugoslav attacks against those positions.

a. What is your legal evaluation of the bombardments and of the alleged Croatian behaviour? May the alleged
Croatian behaviour justify the Yugoslav attacks? (GC I, Art. 21; GC IV, Arts 18 and 19; P I, Arts 12and 13, CIHL
Rules 28 and 30)

b. What can a humanitarian organization suggest in such a situation? Should it assess the facts and find out
whether the hospital is actually targeted and whether the Croats actually use it to shield artillery positions?
What are the chances that a humanitarian organization comes to definite findings? Should it make them
public? Should it suggest the creation of a hospital zone under Art. 14 or of a neutralized zone under Art. 15 of
Convention IV? What are the arguments in favour of each solution? What are the advantages and
disadvantages to establishing any such zone: for the war victims? For a humanitarian organization? For the
belligerents? What difficulties can be expected in negotiating such an agreement? How would you prepare for
those negotiations?

6. On January 4, 1992, the 15th cease-fire agreement between Croatia and the Yugoslav People’s Army entered
into force and was long-lasting. On February 21, the UN Security Council established through Resolution 743
(1992) the United Nations Protection Forces (UNPROFOR), deployed, in particular, in the Serb-held territories
in Croatia, with the mandate of ensuring that the “UN Protected Areas” (UNPAs) are demilitarized through the
withdrawal or disbandment of all armed forces and that all persons residing in these areas are protected from
fear of armed attack. In reality, UNPROFOR could only partly fulfill this mandate as local Serbian forces
remained in control of the areas.

a. When UNPROFOR deployed in spring 1992 in the Serb-held territories of Croatia, did it have to respect the
rules of Convention IV on occupied territories?

b. Could UNPAs be considered Croatian territories occupied by Yugoslavia through local Serbian forces?

7. At the end of 1991 and the beginning of 1992, mutual accusations of war crimes between Croatia and
Yugoslavia increased sharply in international media, international fora, the regular sessions of the parties’
plenipotentiary representatives under ICRC auspices (in which the atmosphere deteriorates due to such
accusations), and in letters from both sides addressed to the ICRC. Croatia refers in particular to the
evacuation (under the eyes of an ICRC delegate) and assassination of hundreds of patients of the Vukovar
hospital by the Yugoslav People’s Army.
a. What follow-up would you give to such accusations if you were the ICRC? What humanitarian arguments
are in favour or against a follow-up? Would you accept requests by one side to enquire into such allegations? At
least if the request comes from the side against which the allegation is made? If both sides request the ICRC to
enquire?

b. What would you do with the letters of mutual accusation addressed to the ICRC?

c. Chairing the meetings of the parties’ plenipotentiary representatives, how would you deal with the mutual
accusations? Would you allow a discussion? Would you suggest the establishment of a commission of enquiry?

d. Would you suggest the parties to submit their allegations to the International Humanitarian Fact-Finding
Commission provided for by Art. 90 of Protocol I?

e. If you had to draft a proposal for the creation of an ad hoc fact-finding commission along the lines of Art. 90
of Protocol I, on which issues could you expect the greatest resistance and by which side?

f. If a fact-finding commission is established, should the ICRC delegate who witnessed the “evacuation” of the
patients of Vukovar hospital testify? Under what circumstances? Should this delegate testify today before the
International Criminal Tribunal for the Former Yugoslavia? What arguments could the ICRC use not to let him
testify?

See Case - ICTY/ICC, Confidentiality and Testimony of ICRC Personnel

8. In spring 1992, when the prisoners of the conflict in Croatia had to be repatriated, Belgrade refused the
repatriation of many of them claiming:

– that they were under judicial proceedings for desertion and high treason (as members of the Yugoslav
People’s Army having “fought for the enemy”);

– that they had committed war crimes.

Zagreb refused repatriation for similar arguments.

a. What do you think of these arguments from a legal point of view? (GC III, Arts 85, 119(5), and 129)

b. If you were the ICRC, how would you have dealt with this deadlock? What does “repatriation” mean for a
Serbian member of the Serbian minority in Croatia, who lived before the conflict in Zagreb, was drafted into
the Yugoslav People’s Army, and was captured by Croatian forces?

9. Bosnia-Herzegovina is ethnically divided between a relative majority of Bosnian Muslims (considered as a

nationality called “Muslims” in the former Yugoslavia), Serbs, and Croats. In April 1992, it declared its
independence following a referendum, boycotted by Serbs, in which Muslims and Croats voted in favour of
independence. An armed conflict broke out between (Muslim and Croatian) forces loyal to the government,
supported on the one hand, by Croatia, and on the other hand by Bosnian Serb forces opposing the
independence of Bosnia-Herzegovina, supported by the Yugoslav People’s Army, particularly by its units made
up of Bosnian Serbs.
a. How would you qualify the conflict in Bosnia-Herzegovina: Is it an international or a non-international
armed conflict? (GC I-IV, Arts 2 and 3; Agreement No. 1 of May 22 1992 (hereinafter Agreement No. 1)
[See Case - Former Yugoslavia, Special Agreements Between the Parties to the Conflicts [Part B.]] Arts 1 and 2)
Does the involvement of Belgrade (and Zagreb) change your qualification? Whose involvement could change
the qualification?

See Case - ICTY, The Prosecutor v. Tadic

b. Would you qualify the conflict if you were a humanitarian organization? If you had to negotiate an ad hoc
agreement between the parties on the applicable international humanitarian law, would you base it on Art. 3(3)
common to the Geneva Conventions?

c. Under Convention IV, who is a protected civilian in Bosnia-Herzegovina? (GC IV, Art. 4) Under Agreement
No. 1? (Agreement No. 1, Art. 2(3)) Is the forced displacement of Bosnian Muslims from Serb-held Banja Luka
to government-held Tuzla unlawful (GC IV, Arts 35 and 49(1), P II, Art. 17; Agreement No. 1, Art. 2(3)) Is the
forced recruitment of Muslims by the Bosnian Serbs unlawful? Is the forced recruitment of Bosnian Serbs by
the Sarajevo government unlawful? (GC IV, Arts 51 and 147) When is it lawful for the Sarajevo government to
compel Serb inhabitants of Sarajevo to dig trenches on the front-line? (GC IV, Arts 40 and 51)

10. Beginning in late April 1992 and continuing throughout the whole conflict, the belligerent parties of the
three ethnic groups in Bosnia-Herzegovina, particularly at the beginning the Bosnian Serb authorities,
undertook a campaign of “ethnic cleansing” against civilians of other ethnic groups living in the regions they
controlled. Sometimes villages inhabited by other ethnic groups were indiscriminately bombed to force
civilians to flee; often men were rounded up and arrested as “terrorists” and potential combatants, while
women were sometimes raped and often sent, together with children and elderly persons, either in organized
transports or on their own to areas controlled by “their own” ethnic group. Property belonging to these people
was being systematically burned or razed to the ground, thus shattering all hope of return for the ousted
families. In other cases, members of another ethnic group simply lost their jobs and were harassed with non-
violent means by the local authorities and their neighbours until they saw no more future in their home region
and fled. It was not always clear whether those acts of “ethnic cleansing” were planned by the authorities or
were spontaneous acts of the local population in a generalized atmosphere of inter-ethnic hatred. In later
phases of the conflict, additional waves of ethnic cleansing broke out in reaction to such practices, and the main
actors were those forced to flee their homes in territory controlled by other ethnic groups and who sought
refuge in territory controlled by their ethnic group.

a. Are all the above-mentioned practices prohibited under IHL? Under IHL of international armed conflict as
well as under IHL of non-international armed conflict? (GC III, Arts 3 and 4; GC IV, Arts 3, 27, 32, 33, 35-
43, 49, 52 and 53; P I, Arts 48, 51, 52 and 75; P II, Arts 4 and 17, 23, 25; HR, Art. 28; CIHL Rules 49-51, 93)

b. What can humanitarian organizations do against such practices? May they organize appropriate
transportation and negotiate passage through the front lines for civilians wishing to leave under the pressure of
such practices? Don’t they contribute thus to ethnic cleansing? May they do it at least when the concerned
civilians fear for their lives?

Paragraphs 11 to 20
11. In May 1992, the ICRC’s head of delegation in Sarajevo was killed during a deliberate attack on the Red
Cross convoy in which he was traveling in Sarajevo. Since it was no longer able to provide sufficient protection
and assistance for the victims and failed to obtain security guarantees from the parties, the ICRC withdrew
from Bosnia-Herzegovina.
a. May the ICRC withdraw from a country affected by an armed conflict? (GC III, Arts 9 and 126; GC IV, Arts
10 and 143)

b. May a humanitarian organization withdraw from a conflict area because one of its staff is killed? At least if
no sufficient security guarantees are offered for the future? Even if the party to the conflict responsible for the
attack is unknown? Could this withdrawal be considered as a collective punishment? Could it be said that the
organization thus takes the victims as hostages against their authorities? Couldn’t an organization help at least
some victims even without security guarantees? Does that mean that the life of an expatriate aid worker is
worth more than that of a local victim?

c. May a humanitarian organization leave a conflict area because IHL is too blatantly violated?

d. May a humanitarian organization withdraw from a conflict area because it cannot sufficiently fulfill its
mandate of protecting and assisting victims? If it is denied access to some victims? If it can no longer assist the
local population because its relief convoys are not allowed free passage by the other side? If its confidential or
public approaches have no impact on the behaviour of the parties? If its visits to prisons do not lead to any
improvement of unacceptable conditions of detention of prisoners? What if the organization could nevertheless
help some victims? Could this withdrawal be considered as a collective punishment? Could it be said that the
organization thus takes the victims as hostages against their authorities? May a neutral and impartial
humanitarian organization continue to act in a conflict if only one side allows it access to victims (“belonging”
to the other side), while the other side denies access?

12. When the ICRC returned to Bosnia-Herzegovina in the summer of 1992 it was finally allowed to visit, in
particular in the “Manjaca Camp”, large numbers of the (surviving) men rounded up by Bosnian Serb forces
during ethnic cleansing operations in Eastern and Central Bosnia. Its delegates found appalling conditions of
detention, seriously undernourished prisoners who could not expect to survive the Bosnian winter, and
collected highly disturbing allegations of summary executions. It tried to draw the attention of the international
community and public opinion on those facts, but succeeded only when TV Crews were allowed by the Bosnian
Serbs to film detainees in Manjaca.

Through considerable relief efforts and frequent visits, the ICRC managed to improve conditions of
detention, but it came to the conclusion that only the release of all prisoners before the Bosnian winter could
solve the humanitarian problem. Relief efforts in favor of the inmates were hampered by violent
demonstrations of the local Serbian population in villages around Manjaca camp who were suffering from the
consequences of international sanctions against Serbs and did not want to allow free passage to the relief
convoys. On September 15, 1992, 68 injured and sick detainees were evacuated to London to receive medical
attention. Thanks to the pressure of international public opinion and by constant negotiations with the parties,
the ICRC got them to conclude, on October 1, an agreement under which more than 1,300 detainees were to be
released before mid-November (925 by Bosnian Serbs, 357 by Bosnian Croats, and 26 by Bosnian government
forces). Under the agreement, the detainees to be released could choose during individual interviews without
witnesses with ICRC delegates, whether they wanted to be released on the spot, to be transferred to regions
controlled by their ethnic group, or to be transferred to a refugee camp in Croatia in view of (temporary)
resettlement abroad. Affected by what they had undergone and in view of the generalized atmosphere of ethnic
cleansing, practically all inmates from Manjaca chose to leave the country.

a. Why did the Bosnian Serb authorities give TV cameras access to Manjaca? Didn’t the world media, by airing
the images from Manjaca, increase the fear among ethnic minority groups and thus contribute to “ethnic
cleansing”?

b. Should a humanitarian organization provide food and shelter to detainees? Under IHL , isn’t that the
responsibility of the detaining authorities? Should a humanitarian organization ask detaining authorities to
release prisoners if they do not treat them humanely?
c. May a humanitarian organization distribute relief aid to the local population of villages surrounding
Manjaca so that they let the relief convoys go to Manjaca? Is it an application of the Red Cross principles of
neutrality and impartiality or is it a case of pure operational opportunism? Doesn’t a humanitarian
organization thus give in to blackmail? How would you judge the situation if the Bosnian Serbs were asking for
fuel for heating (which could however also be used for tanks) – as they later successfully asked UNPROFOR?

d. Was the detention of men between 16 and 60 years old, militarily trained as territorial defence in the former
Yugoslavia and ready to join Bosnian government forces, necessarily unlawful? (GC III, Arts 4and 21; GC IV,
Arts 4, 42 and 78) Could the ICRC ask for their release? Doesn’t the ICRC visit detainees only out of concern for
their humane treatment, without interfering into the reasons for their detention or asking for their release?
Don’t massive requests for releases accredit in the minds of the parties the (wrong) idea that if they give the
ICRC access to prisoners they have to release or exchange them, thus increasing the tendency to hide prisoners
from the ICRC?

e. Didn’t the releases of the Bosnian Muslim detainees, most of whom understandably chose to be transferred
abroad, contribute to ”ethnic cleansing”? Should the inmates remain detained, for their protection, until they
can safely return home? Does the party controlling the territory where the released prisoners are transferred to
have an obligation not to enroll them (again) into military service against the party that released them? (GC III,
Art. 117)

f. How would you have reacted to the parties’ claims (prima facie not totally unreasonable) during
negotiations on the releases that many of the persons detained had committed war crimes?

13. During the whole conflict, Sarajevo was (practically) surrounded by Bosnian Serb forces, but defended by
Bosnian government troops. It was constantly bombed by Bosnian Serb artillery. The survival of the
inhabitants of Sarajevo or, more precisely, their ability not to surrender to the Bosnian Serbs, was made
possible mainly by relief flights of UNPROFOR (offering its logistics to and acting for the UNHCR), which were
often interrupted following attacks by Bosnian Serb or unknown forces, or due to lack of security guarantees.

a. Was it lawful to bomb Sarajevo? (P I, Arts 48 and 51; Agreement No.1, Art. 2(5)) Does your appreciation
under IHL of those bombings change after Sarajevo had been declared a “safe area” by the UN Security Council
(as described infra, point 14.)?

[See also Case - ICTY, The Prosecutor v. Galic]

b. Is the stopping by Bosnian Serbs of relief convoys to Sarajevo unlawful? (GC IV, Arts 23 and 59; P I, Art.
70; Agreement No. 1, Art. 2(6)). Do neighbouring Croatia and the UN Security Council (in case of an embargo)
have similar obligations towards the Bosnian Serbs? To what conditions may the Bosnian Serb authorities
subordinate the passage of relief convoys?

– to the checking of the convoy?

– to the distribution of relief to civilians only?

– to the distribution of relief to both Serbs and Bosnian Muslims?

– to the distribution of relief under outside supervision?

– to the simultaneous agreement by Bosnian government forces to allow passage of relief convoys to Serb
controlled areas?

– to the release of prisoners by the Bosnian government?

– to the respect of cease-fire agreements by the Bosnian Muslims?

c. What are the advantages and disadvantages of bringing relief by airlift to Sarajevo? What may the
advantages and risks be for the UNHCR given that the airlift is under the full operational responsibility of
UNPROFOR?

d. What could be the legitimate and illegitimate interests of the Bosnian Serbs to hinder relief supplies to
Sarajevo?

e. Could the Bosnian government have reasons to hinder relief supplies to Sarajevo?

14. As the ICRC was confronted with continuing practices of “ethnic cleansing” by all parties (the Bosnian
Muslim population being, however, the main victims), that threatened the lives of ethnic minority populations
and made large groups of population flee when front lines changed, and as no third country seemed ready to
offer even temporary asylum to one hundred thousand Bosnian refugees, the ICRC suggested, in the fall of
1992, the establishment of protected zones to shelter endangered civilians. The concept and location of the
zones should be based on an agreement of the parties, but UNPROFOR should provide internal and external
security for such zones.

In 1993, the UN Security Council established through Resolutions 819 and 824 (1993) safe areas in and
around the towns of Sarajevo, Tuzla, Zepa, Gorazde, Bihac, and Srebenica, controlled by the Bosnian
government, asking for the immediate cessation of hostile acts against those areas and the withdrawal of
Bosnian Serb units from their surroundings.

[See Case - Bosnia and Herzegovina, Constitution of Safe Areas in 1992-1993]

This had to be monitored by UN Military observers. The parties were asked to fully cooperate with
UNPROFOR, but UNPROFOR was not given a clear mandate to defend those areas and the Resolutions only
invoked Chapter VII of the UN Charter (permitting the use of force) as far as the security and freedom of
movement of UNPROFOR was concerned. Security Council Resolution 836 (1993) went further authorizing
UNPROFOR “acting in self-defence, to take the necessary measures, including the use of force, to reply to
bombardments against the safe areas by any of the parties […].” The Security Council did not ask for a
demilitarization of those areas but decided in Resolution 836 (1993) “to extend […] the mandate of
UNPROFOR in order to enable it […] to promote the withdrawal of military or paramilitary units other than
those of the Government of the Republic of Bosnia and Herzegovina […].”

a. What humanitarian problems led the ICRC to suggest the establishment of protected zones and the UN
Security Council to establish safe areas? How does IHL normally deal with such problems?

b. What are the particular reasons and dangers in establishing any kind of safety zones in a situation of “ethnic
cleansing” like the one in Bosnia-Herzegovina?
c. Does the ICRC suggest establishing one of the protected zones provided by IHL? Does IHL provide for an
international monitoring of such a zone? Is international protection of such a zone provided by IHL? Is it
compatible with IHL? Why does the ICRC suggest international military protection? Should the Security
Council give UNPROFOR the mandate to defend those areas? (GC I-IV, Art. 3; GC IV, Arts 14 and 15; P I, Arts
59 and 60)

d. Should the ICRC suggest the demilitarization of the protected zones (from Bosnian government forces)? Is
this condition implied in the spirit of IHL on protected zones? Would such a condition have been realistic?
Would the creation of a zone without such demilitarization have been realistic? May Bosnian government
forces stay in the safe areas established by the Security Council? Under IHL and the UN resolutions, may they
launch attacks from the safe areas against Bosnian Serb forces?

e. Were the zones open to occupation by the adverse party? Under IHL, is such a requirement inherent to
protected zones? Would such a requirement have been realistic?

f. Does the ICRC proposal come under jus ad bellum or under jus in bello? Does it respect the Red Cross
principles of neutrality and impartiality? Doesn’t it suggest the use of force against one side of the conflict?
What is the legal basis of the ICRC proposal?

g. On what essential points do the safe areas established by the Security Council differ from the protected
zones suggested by the ICRC?

h. Do the safe areas established by the Security Council come under jus ad bellum or under jus in bello? Is it
appropriate to charge peacekeeping forces with the mandate they got under the Resolutions?

i. Which elements of the “safe areas” established by Resolutions 819 and 824 recall or implement jus in bello?
Jus ad bellum?

15. In the beginning of 1992, the Co-presidents of the International Conference on the Former Yugoslavia, C.
Vance and Lord Owen, presented a peace plan for Bosnia-Herzegovina (the Vance-Owen Plan), which included
the division of Bosnia into 10 nationally defined cantons. Bosnian Croats were delighted by the plan which
increased their territory, while Bosnian Serbs rejected it coldly. The Bosnian (Muslim) president was
undecided. The Bosnian Croats tried to implement it forcefully in central Bosnia. They demanded that the
Bosnian government forces withdraw within the borders of their assigned cantons and that the joint command
of the forces of Croat Defence Council (HVO) and the BH Army be established. If not, HVO threatened to
implement the Vance-Owen Plan itself. After the deadline expired, on April 16, 1993, HVO forces carried out a
coordinated attack on a dozen villages in the Lasva Valley (belonging to the Croatian canton of the Vance-Owen
Plan). Troops from Croatia were present on HVO-controlled territory but did not fight in the Lasva Valley.
Croatia financed, organized, supplied, and equipped HVO.

a. Was there an international armed conflict between Bosnia-Herzegovina and Croatia? If so, did IHL of
international armed conflicts also apply to the fighting in the Lasva Valley between HVO and Bosnian
government forces? Were the parts of the Lasva Valley, falling under HVO control during the fighting, occupied
territories under IHL? Were its Bosnian Muslim inhabitants protected persons? Were the Bosnian Croats living
in parts of the Lasva Valley which remained under government control protected persons too? (GC IV,
Arts 2 and 4)

b. Was Agreement No.1 applicable to the fighting in the Lasva Valley?

 [See Case - Former Yugoslavia, Special Agreements Between the Parties to the Conflicts [Part B.]]

16. In the Bihac area, in the Western-most part of Bosnia-Herzegovina, inhabited almost exclusively by
Bosnian Muslims, Mr. Fikret Abdic, a Muslim businessman and politician, and his followers (mainly the
employees of his “Agrokommerc” industry near Velika Kladusa) were not ready to follow the politics of the
Bosnian government; they claimed autonomy and aligned themselves with the Bosnian Serbs and the
neighbouring Croatian Serbs. An armed conflict between Bosnian government forces in the Bihac enclave
surrounded by Bosnian and Croatian Serb forces and by those of Mr. Abdic followed. In 1995, the two-and-a-
half-year siege of the Bihac enclave was ended by an offensive of Croatian forces against the Croatian Serb
forces. When Bosnian government forces subsequently took Velika Kladusa, the followers of Mr. Abdic fled into
neighbouring Croatia where they were halted in Kupljensko by the Croatian authorities.

a. Under IHL, how do you qualify this conflict? What instruments of IHL apply (taking into account that
Bosnia-Herzegovina is a party to all instruments of IHL)? (GC I-IV, Art. 3; P II, Art. 1)

b. Was Agreement No. 1 applicable to that conflict?

c. Could the Bosnian authorities punish followers of Mr. Abdic for the mere fact that they took part in the
rebellion, even if they respected IHL?

d. Had the Croatian authorities an obligation to let followers of Mr. Abdic into Croatia?

e. Could the Croatian authorities forcibly drive those persons back from Kupljensko to Bosnia-Herzegovina?

f. Could the Croatian authorities deny the entering of relief into Kupljensko camp in order to drive its
inhabitants back to Bosnia-Herzegovina?

17. Following widely publicized and credible reports by the media, by different human rights organizations, and
by representatives of the international community about widespread atrocities committed as part of practices
of “ethnic cleansing”, including rapes allegedly committed in particular by Bosnian Serb forces on a systematic
basis and as a policy, the international public opinion and the international community insisted on the
punishment of those responsible for such serious violations of IHL and of human rights. Particularly outraged
about rapes, a specific instrument against such practices was desired and it was said that contemporary IHL
does not sufficiently prohibit rape. First, the UN Security Council established in Resolution 780 (1992) a
Commission of Experts enquiring into alleged violations which later published a very extensive report, but on
May 25, 1993, it went further establishing by Resolution 827 (1993), acting under Chapter VII of the UN
Charter, an “International Tribunal for the Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991” (ICTY) in
The Hague. The ICTY is competent to prosecute grave breaches of the Geneva Conventions, violations of the
laws or customs of war, genocide, and crimes against humanity. It has concurrent jurisdiction with national
courts, but primacy over them when it so decides. All States have to cooperate with the ICTY.

[See Case - UN, Statute of the ICTY and Case - ICTY, The Prosecutor v. Kunarac, Kovac and Vukovic]

a. Why did the media, the public opinion, and the Security Council react so strongly against violations of IHL
in the former Yugoslavia? Was it because they were more serious than those committed in Cambodia,
Afghanistan, Zaire, Liberia, or Chechnya? Because they were more wide-spread and systematic? Because the
media widely covered them? Because they were seen as having been mainly committed by the party seen as the
aggressor? Because the international community was not ready to stop the war? Because it happened in
Europe?

b. Is rape prohibited by IHL of international armed conflicts? By IHL of non-international armed conflicts? Is
it a grave breach of IHL? Is it a war crime? Even in non-international armed conflicts? Are there any grave
breaches of IHL in non-international armed conflicts? If the law of international armed conflicts is applicable,
is the rape of a Bosnian Muslim woman by a Bosnian Serb soldier in Bosnia-Herzegovina a grave breach? Is the
rape of a Bosnian Serb woman by a Bosnian government soldier a grave breach? (GC IV, Art. 147; P I, Art.
85(5); Agreement No.1, Art. 5)

c. Who has the obligation to prosecute persons having committed grave breaches in Bosnia-Herzegovina? (GC
IV, Art. 146; Agreement No.1, Art. 5) Does IHL provide for the possibility of prosecuting war criminals before
an international tribunal? Are the prosecution of war criminals before an international tribunal and its
concurrent jurisdiction compatible with the obligation of States under IHL to search for and prosecute war
criminals? (GC I-IV, Arts 49/50/129/146 respectively)

d. Will the ICTY have to qualify the conflict in fulfilling its mandate?

e. Were the different armed conflicts in the former Yugoslavia, even those of a purely internal character, a
threat to peace (justifying measures under Chapter VII of the UN Charter)? Is the establishment of a tribunal to
prosecute violations of IHL a proper measure to stop that threat? Can we today say whether it contributed to
the restoration of peace in the former Yugoslavia? Does that (the final result) actually matter? Doesn’t the
prosecution of (former) leaders make peace and reconciliation more difficult? Or are violations of IHL
themselves threats to peace (justifying measures under Chapter VII of the UN Charter)? Even in non-
international armed conflicts? Could the same be said of gross violations of human rights outside armed
conflicts?

f. May the UN Security Council establish a tribunal? Is such a tribunal independent? Is it a “court established
by law”? Is the creation of a tribunal competent to try acts committed before it was established itself violating
the prohibition (in IHL and Human Rights Law) of retroactive criminal legislation? How, apart from a
resolution of the Security Council, could the ICTY have been established? What are the advantages and
disadvantages of other methods?

g. Is the establishment of an International Tribunal only for the former Yugoslavia a credible measure to
increase respect for IHL? At least if the Security Council is willing to establish additional tribunals in similar
future cases? Is it reasonable to expect the Security Council to establish similar tribunals in all similar cases?
Can one imagine a tribunal not competent to decide when it is competent?

h. Under IHL and the Statute of the tribunal, does the ICTY relieve States from their obligation to search for
and prosecute war criminals?

i. Is the Statute of the ICTY penal legislation or does it simply provide rules of competence of the ICTY? Even
when it applies to non-international armed conflicts?

j. Can you imagine why the Statute does not refer to grave breaches of Protocol I? Is there any possible
justification for this omission, taking into account that the former Yugoslavia and all its successor States are
Parties to Protocol I and that the parties to the conflicts have undertaken to respect large parts of it regardless
of the qualification of the conflict? How could the ICTY nevertheless try grave breaches of Protocol I?
 [See Case - Former Yugoslavia, Special Agreements Between the Parties to the Conflicts]

k. Has the ICRC a right to visit an accused detained by the ICTY? Must it be notified of sentences as a de facto
substitute of the Protecting Power? (GC I and II, Art. 10(3); GC III, Arts 10(3), 107 and 126, GC IV, Arts
11(3), 30, 74 and 143; P I, Art. 5(4)). If you were the ICRC, would you try to visit war criminals?

l. Do those detained under the authority of the ICTY (pending trial or having been sentenced) lose IHL status
as protected civilians or prisoners of war if they had such status before being arrested in the former Yugoslavia?
Is it lawful to deport a civilian arrested in the former Yugoslavia to the Hague to stand trial? (GC III, Art.
85; GC IV, Arts 49 and 76(1); P I, Art. 44(2))

m. Does it weaken the credibility of IHL if the ICTY cannot gain custody over the major violators of IHL in the
former Yugoslavia? Do indictments by the ICTY have an impact if arrest warrants are not enforced by States?

18. During the whole conflict in Bosnia-Herzegovina, soldiers who fell into the power of adverse parties and
civilian men of fighting age were rounded up in waves of “ethnic cleansing” or to increase the number of
persons to be exchanged. Those persons were generally held together; the ICRC often had access to them and
was able to register them. From the beginning of the conflict, the parties had been quick to establish “exchange
commissions” which drew up lists – or used those provided by the ICRC – of all prisoners available in order to
barter with the opposing forces; in many cases civilians were arrested solely for exchange purposes, sometimes
for releasing them to impress international celebrities planning a visit in the region and asking for a gesture.
Prisoners were sometimes traded even for fuel or alcohol. Partly because of the length of the conflict and the
intermingling of civilians and combatants among the prisoners, humanitarian organizations were often present
during those negotiations, facilitating the conclusion of “deals”, and trying to ensure a minimum of humane
treatment during such exchanges. The ICRC was also ready to be present at exchanges if certain conditions for
the detainees were respected and if the institution was allowed to interview detainees in private to ensure that
their choice of destination was respected by the parties.

a. Which of the mentioned categories of prisoners may be detained under IHL? When must they be released?
Is it acceptable under IHL to exchange prisoners who have to be released? To exchange prisoners who do not
have to be released? (GC III, Art. 118; GC IV, Arts 37, 41-43, 76, 78 and 132; P I, Art. 85(4)(b))

b. From a humanitarian and moral point of view, what are the advantages and disadvantages of prisoner
exchanges? If two parties exchange all (known) prisoners (of a certain category)? If they exchange one prisoner
for another? How can the risk that persons are rounded up just in view of an exchange be avoided? Do hidden
or unregistered prisoners have a greater or a smaller “value” on the “exchange market”?

c. Should humanitarian organizations be present during exchange negotiations? During the actual exchanges?
What are the advantages and disadvantages of their presence? What minimum conditions should be fulfilled
before a humanitarian organization or representatives of the international community accept to organize,
supervise, or monitor exchanges?

d. What are the reasons for the ICRC to register the prisoners it visits? Should lists drawn up after such
registration be transmitted to the detaining authorities? To the adverse side? Even if it is in view of exchange
negotiations? Is that provided for in IHL? Are there exceptions? Do such lists reduce the risk that persons are
rounded up just in view of exchanges? Does a transmission to the adverse party not incite the detaining party to
hide prisoners it does not want to exchange from the ICRC? (GC III, Arts 122and 123; GC IV, Arts 137 and 140)

19. In the spring of 1995, Sarajevo was again entirely cut off from vital supplies and came under heavy fire from
Bosnian Serbs violating once more an agreement upon a heavy weapons exclusion zone established by the UN
Security Council in February 1994. This time, however, after a UN ultimatum went unacknowledged, NATO
reacted with air strikes against Bosnian Serb ammunition stocks in the Pale area. Bosnian Serb forces
responded by arresting some 350 UN military observers and UNPROFOR personnel stationed on territory they
controlled. Some of those persons were held on or near possible military objectives. ICRC delegates gained
access to only some of them and to Bosnian Serb soldiers captured by UNPROFOR when they tried to attack
one of UNPROFOR’s outposts. The UN personnel were finally released after long negotiations.

After another shelling of the Sarajevo marketplace, a joint British/French rapid reaction force was deployed
on Mount Igman to enforce access for relief convoys to Sarajevo, and NATO launched air strikes against
Bosnian Serb communication posts, arms storehouses, weapons factories, and strategic bridges. A water
reservoir was also struck, and a pregnant woman was wounded by glass splinters from a hospital window that
blew up under the shock created by one of the aforementioned bombings. Two French NATO pilots who had to
abandon their military aircraft by parachute after it had been shot down by Bosnian Serb forces were captured
by Bosnian Serb forces.

a. Is IHL applicable to NATO air strikes? Even though they only enforce UN Security Council resolutions and
act in defence of the inhabitants of Sarajevo? Is IHL of international armed conflicts applicable or is it IHL of
non-international armed conflicts? (GC I-IV, Art. 2 and preamble para. 5; P I, Art. 1) Did all the mentioned
NATO air strikes comply with IHL? Even when a water reservoir was damaged and a pregnant mother hurt? (P
I, Arts 51, 56 and 57, CIHL Rules 15 and 22) Are hospitals and pregnant mothers not specially protected by
IHL? (GC I, Arts 16 and 18, CIHL Rules 28, 30, 134)

b. Is the UN a party to the Conventions and Protocols? Can the UN conceivably be a Party to an international
armed conflict in the sense of Art. 2 common to the Conventions? For the purposes of the applicability of IHL,
can the UN forces be considered as armed forces of the contributing States (which are Parties to the
Conventions), and can any hostile acts be considered an armed conflict between those States and the party
responsible for the opposing forces?

c. Are members of UNPROFOR detained by Bosnian Serb forces prisoners of war or hostages? (GC III, Art.
4; GC IV, Arts 4 and 34) May they be detained? May they be held in a facility considered as a military objective?
(GC III, Art. 22; GC IV, Art. 28, CIHL Rule 121) Has the ICRC a right to visit them? Even if they are not
prisoners of war? If they are hostages? If IHL is not applicable? If IHL of non-international armed conflicts is
applicable? Must they be released? When? Why would the UN object to their personnel being qualified as
prisoners of war?

d. Are Bosnian Serb soldiers captured by UNPROFOR prisoners of war? Even if UNPROFOR captured them
in an act of self-defence?

e. Did the shooting down of the French NATO aircraft violate IHL? May the Bosnian Serb soldiers who shot
them down be punished for that attack?

f. Are the French pilots detained by Bosnian Serb forces prisoners of war, “UN experts on mission” (protected
by the relevant multilateral convention), or hostages? (GC III, Art. 4; GC IV, Arts 4 and 34; CIHL Rule 96) Is
France engaged in an international armed conflict against Bosnian Serbs?

g. May the French pilots be detained? Has the ICRC a right to visit them? Must they be released? When? Why
would France object to their qualification as prisoners of war? If you were the French pilots, would you prefer
to be treated as a prisoner of war under Geneva Convention III or to be protected under the UN Convention on
the Safety of UN and Associated Personnel which makes it a crime to attack UN personnel and establishes a
duty not to detain them? What are the advantages and disadvantages of both options regarding treatment,
repatriation, and the chances that your status is accepted and respected by the enemy?
 [See Case - Convention on the Safety of UN Personnel]

20. Since 1992, Srebrenica and its surroundings, with nearly 40,000 inhabitants and displaced persons, were
an enclave held by Bosnian government forces, surrounded and regularly attacked by (but sometimes also
attacking) Bosnian Serb forces. In 1993, Srebrenica was declared a “safe area” by the UN Security Council, but
it was not demilitarized, continued to be submitted to indiscriminate attacks and insufficient relief was brought
in. The only expatriate presence was some 300, mainly Dutch, UNPROFOR peace-keepers. International
humanitarian organizations failed to establish a permanent expatriate presence, or abandoned it because they
lacked opportunities to develop serious assistance or protection activities. In summer 1995, peace negotiations
showed a tendency to divide Bosnia-Herzegovina into a Serb entity in the North and the East and a Croat-
Muslim entity in the West and the Centre. Srebrenica is located in the East.

In July 1995, military pressure on Srebrenica increased into a full-fledged offensive with tanks and
indiscriminate artillery bombardment. Despite requests by Bosnian government forces (also taking the form of
threats, hostage-taking, and attacks against peace-keepers), the Dutch UNPROFOR battalion refused to
respond to the Bosnian Serb offensive against Srebrenica. Only on July 11, when Srebrenica had practically
already fallen, US military airplanes destroyed one Bosnian Serb tank outside Srebrenica.

12,000-15,000 men fled Srebrenica, many of them with their weapons, through the woods towards Bosnian
government controlled territory. At least 5000 of those men never arrived to that territory, but were killed
during Bosnian Serb attacks on the column, which also occurred after men surrendered. Some of them even
committed suicide in despair.

On July 12, Srebrenica fell. Nearly 26,000 men, women, and children tried to take refuge at the UNPROFOR
base of Potocari. There, however, Bosnian Serb forces rounded up women and children and sent them by bus
toward the front-line, which they often had to cross on foot while exhausted and amid fighting. More than
3000 boys and men of military age were separated from the women and children and arrested, before the eyes
of Dutch UNPROFOR soldiers, by the Bosnian Serb forces allegedly to check whether they had committed war
crimes. Only a few men who were wounded and later visited by the ICRC and those who managed to escape
were ever seen again, and reported that all others had been summarily executed.

The ICRC, which had not been allowed by Bosnian Serb forces to be present during the events, concentrated
on the reception of the displaced on Bosnian government-controlled territory and registered all names of
missing men given by their families. The ICRC assumed that at least more than 3000 men arrested at Potocari
had to be in Bosnian Serb detention and undertook all possible bilateral steps with the Bosnian Serb
authorities to gain access to those prisoners, to monitor their conditions of detention, to register them, and to
inform their worried families. However the Bosnian Serb authorities gave evasive answers and used delaying
tactics, as all parties had often done during the conflict. Towards the end of July, when the ICRC was finally
given access to Bosnian Serb prisons, it found only very few detainees from Srebrenica. The ICRC, however, did
not yet abandon the hope that the others were secretly detained and continued to press Bosnian Serb
authorities for access. Only when the ICRC was able to see all prisoners in Bosnia-Herzegovina, after the
signing of the Dayton Peace Agreement (See infra, point 21.), did it come to the conclusion that the
overwhelming majority of the (as of July 1997) more than 7000 missing people from Srebrenica had been
killed, mainly after arrest or capture.

a. Should humanitarian organizations have maintained an expatriate presence in Srebrenica, even when the
activities they were able to develop did not justify such a presence? At least for reasons of “passive protection”
of the population and to show them that they were not forgotten? Does such “passive protection” work?

b. How could the UN Security Council have avoided the deaths of 7000 inhabitants of Srebrenica? By not
declaring Srebrenica a safe area? By demilitarizing it? By changing the mandate of UNPROFOR? By drastically
increasing the number of UNPROFOR personnel to be stationed in Srebrenica? Could it have avoided the
massacre without avoiding the fall of Srebrenica? How should it have reacted to the fall in order to avoid the
massacre?

c. Has IHL failed in Srebrenica? How could one have made sure that it worked? Does the case of Srebrenica
show the limits of IHL? Does it show that, in certain cases where jus in bello is not respected, only jus ad
bellum contains a solution?

d. How should the Dutch peace-keepers have reacted to the separation of men from women and children and
to the arrest of the former? Was that a violation of IHL?

e. How could humanitarian organizations and human rights organizations have reacted to the news about the
fall of Srebrenica in order to avoid the massacre? Particularly if their analysis of the situation led them to the
conclusion that the Bosnian Serb forces would slaughter any Bosnian Muslim men they arrest?

f. Was the reaction of the ICRC to the events of Srebrenica wrong? What could it have done if it had correctly
analysed the situation and arrived at the conclusion that the Bosnian Serb forces slaughtered any Bosnian
Muslim men they arrested? Should the ICRC at least have abandoned its line when the first allegations of
massacres by survivors were collected? Would that have helped any victims of the conflict?

Paragraphs 21 to 30
21. Following the NATO airstrikes and successful military offensives of Croatian and Bosnian government
forces in the Croatian Krajinas and Western and Central Bosnia, the international community, led by the US,
persuaded the parties to conclude a cease-fire on October 5, 1995, and after considerable pressure and
exhausting negotiations with the Presidents of Bosnia-Herzegovina, Croatia, and Serbia (the latter two also
representing the Bosnian Croats and Serbs) the Dayton Peace Agreement was reached in Dayton, Ohio, on
November 21 and signed in Paris, on December 14. Military aspects of the agreement had to be implemented by
IFOR, a NATO-led international implementation force, with powers and manpower much greater than
UNPROFOR and a mandate clearly permitting it to use force in implementing the Agreements.

One of the crucial humanitarian points on the agenda of those having to implement the peace agreement was
the release of all detainees. Annex 1A of the Dayton Agreement on the Military Aspects of the Peace Settlement
contains Article IX on “Prisoner Exchanges”, which obliges the parties to release and transfer by January 19,
1996 all prisoners in conformity with IHL. They are bound to implement a plan to be developed for this
purpose by the ICRC and fully cooperate with the latter. They must provide a comprehensive list of all
prisoners they hold and give full and unimpeded access not only to all places where prisoners are kept but also
to all prisoners by private interview at least 48 hours prior to his or her release for the purpose of
implementing and monitoring the plan, including determination of the onward destination of each prisoner.
Notwithstanding those obligations, “each Party shall comply with any order or request of the International
Tribunal for the Former Yugoslavia for the arrest, detention, surrender of or access to persons who would
otherwise be released and transferred under this Article, but who are accused of violations within the
jurisdiction of the Tribunal. Each Party must detain persons reasonably suspected of such violations for a
period of time sufficient to permit appropriate consultation with Tribunal authorities.”

Despite this commitment of the parties, the process lasted well beyond the agreed time frame and was made
all the more arduous by the parties’ reluctance to abandon their practice of exchanging detainees and the
continuation of negotiations at the local level. The Bosnian government, in addition, objected to a global
release on the grounds that no light had yet been shed on the fate of thousands of people who had disappeared
after the fall of Srebrenica. Throughout the process, ICRC delegates visited and registered new detainees held
by all the parties, building up a comprehensive view of the detention situation in Bosnia- Herzegovina,
establishing lists of their own and carrying out private interviews. In January, some 900 prisoners about which
the parties had notified the ICRC were released by the stated deadline. However, the ICRC had thereafter to
initiate a phase of intensive diplomatic pressure in order to obtain the release of the remainder, informing the
political and military representatives of the international community, including IFOR, NATO, and the US of
the failure of the parties to fulfil their obligations. Detainees still behind bars were declared by the detaining
parties to be held on suspicion of war crimes, although in most of the cases the ICRC was not aware of any
proceedings against them either at the national level or through the ICTY. A breakthrough was finally achieved
at the Moscow ministerial meeting of March 23, 1996, at which the ICRC President and the High
Representative (of the international community, a post created by the Dayton Peace Agreement to oversee
civilian aspects of its implementation), placed the issue of release of detainees clearly on the table. The
international community was not ready to pledge money for the reconstruction of Bosnia and Herzegovina
before this important aspect of the Dayton peace agreement was implemented. The results were almost
immediate. On April 5, the parties finally agreed that the remaining detainees against whom there were no
substantiated allegations of war crimes would be released within a day, while accusations of war crimes were
checked by ICTY. This was implemented.

[See Case No. 206, Bosnia and Herzegovina, Release of Prisoners of War and Tracing Missing Persons After
the End of Hostilities]

a. Taking into account its title reading “prisoner exchanges”, does Art. IX of Annex 1-A provide for a unilateral
obligation to release prisoners? Is the obligation unilateral under IHL or may it be subject to reciprocity? May
the Dayton Agreement differ from IHL, subjecting the obligation to reciprocity? (GC III, Arts 6 and 118; GC IV,
Arts 7 and 133; CIHL Rule 128; Agreement No.1, Art. 2(3)(2))

b. Does Art. IX go beyond the obligations provided for by IHL? (GC III, Arts 118, 122, 123 and 126; GC IV, Arts
133, 134, 137, 138, 140 and 143; CIHL Rule 128)

c. Is Art. IX compatible with the obligations provided for by IHL in the case of grave breaches? Must a Party
release a prisoner it suspects of a war crime but for whom the ICTY does not request arrest, detention,
surrender, or access, at the end of the “period of consultations” under Art. IX(1)? Under IHL? May a Party
release such a person under IHL? Was the further agreement of the Parties, concluded in Rome, under which
no person may be retained or arrested under war crimes charges, except with the permission of ICTY,
compatible with IHL? Can you imagine why the US urged the Parties to conclude such an agreement? (GC III,
Arts 118, 119(5) and 129-131; GC IV, Arts 133 and 146-148; CIHL Rules 128and 158)

d. Why did the ICRC refuse to link the release of prisoners with the problem of missing persons? Is not a
missing person for whom a testimony of arrest by the enemy exists or whom the ICRC once visited, a prisoner
to be released under IHL?

e. What are the risks for a humanitarian organization like the ICRC when the massive international political,
economic, and even military pressure are the only reasons why it managed to carry out a humanitarian
operation like the release of all prisoners (which is part of the implementation of IHL)? In particular, if that
pressure is mainly directed at one side? Is that compatible with the Red Cross principles of neutrality and
impartiality? Could the ICRC have avoided constantly informing the international community about the (extent
of) non-compliance of each party with its obligations? Could the ICRC have pursued its traditional bilateral and
confidential approach with each party separately?

22. When the conflict in Bosnia-Herzegovina ended, families continued to report nearly 20,000 missing
persons [among them, as of July 1997, 16,152 Bosnian Muslims (including more than 7000 from Srebrenica),
2331 Bosnian Serbs, and 621 Bosnian Croats]. Article V in Annex 7 of the Dayton Peace Agreement stipulates
that: “The Parties shall provide information through the tracing mechanisms of the ICRC on all persons
unaccounted for. The Parties shall also cooperate fully with the ICRC in its efforts to determine the identities,
whereabouts and fate of the unaccounted for.” Art. IX(2) of its above-mentioned Annex 1-A furthermore
obliged the Parties to give each other’s grave registration personnel, “within a mutually agreed period of time”,
access to individual and mass graves “for the limited purpose of proceeding to such graves, to recover and
evacuate the bodies of deceased military and civilian personnel of that side, including deceased prisoners.”

On this basis, the ICRC proposed that the former belligerents set up a Working Group on the Process for
Tracing Persons Unaccounted for in Connection with the Conflict on the Territory of Bosnia-Herzegovina – a
convoluted title reflecting the nature of the political negotiations that led to the establishment of this body.
While the Parties endorsed the proposal itself, they engaged in endless quibbling over the wording of the Rules
of Procedure and of the Terms of Reference drafted by the ICRC. Nevertheless, the Working Group, which is
chaired by the ICRC, has met ten times in 1996 in the presence of representatives of other international
institutions involved, Croatia, and the Federal Republic of Yugoslavia. Most of the tracing requests registered
by the families have been submitted, during sessions of the Working Group, to the Party responsible (16,000 to
the Bosnian Serbs, 1700 to the Bosnian Muslims, and 1200 to the Bosnian Croats). The Working Group has
adopted a rule whereby the information contained in the tracing requests, as well as the replies that the Parties
are called on to provide, are not only exchanged bilaterally between the families and the Parties concerned
through the intermediary of the ICRC, but are also communicated to all the members of the Working Group,
that is, to all the former belligerents and to the High Representative. Since 1996, the ICRC has submitted to the
concerned Parties close to 20 000 names of missing persons, requesting them to provide the information
necessary to clarify their fate, in conformity with their obligations under the Dayton Agreement. (See
http://www.icrc.org/eng)

a. Which elements of the ICRC action to trace missing persons in Bosnia-Herzegovina go beyond IHL? Under
IHL, does a party to an international armed conflict have, at the end of the conflict, an obligation:

– to search for persons reported missing by the adverse party?

– to provide all information it has on the fate of such persons?

– to identify mortal remains of persons it must presume to have belonged to the adverse party?

– to provide the cause of death of a person whose mortal remains it has identified?

– to inform unilaterally about the results of such identification?

– to return identified mortal remains to the party to which the persons belonged?

– to properly bury identified and non-identified mortal remains?

– to provide families of the adverse side access to graves of their relatives?

(GC I, Arts 15-17; GC III, Arts 120, 122 and 123; GC IV, Arts 26 and 136-140; P I, Arts 32-34; CIHL, Rule
114-116)

b. Why does the ICRC only submit cases of missing persons registered by their families? Does IHL support
that decision? Does IHL also give a party the right to submit tracing requests? Has the ICRC an obligation to
accept such requests? (GC I, Art. 16; GC III, Arts 122(3), (4) and (6) and 123; GC IV, Arts 137and 140; P I, Art.
32; CIHL Rule 116)
c. What are the reasons, advantages, and risks regarding the solution to communicate all tracing requests and
replies to all members of the ICRC chaired Working Group? Does that prevent politicization?

d. Does Art. IX(2) go beyond the obligations provided for by IHL? Does this provision provide for a unilateral
obligation on each side to give the other side’s grave registration personnel access? May a party use evidence
for war crimes obtained by its grave registration personnel acting under Art. IX(2) in war crimes trials? (P I,
Art. 34; CIHL Rules 114-116)

23. During the conflicts in Croatia and Bosnia-Herzegovina, the ethnic Albanian Kosovans spoke out in favour
of independence for Kosovo and set up parallel health and educational facilities in the province. Their
resistance was essentially non-violent. The Yugoslav authorities kept military control over the whole Kosovo.
Repression mainly consisted of short-term detention, administrative and police harassment. The Kosovo
Liberation Army (UCK) was formed in the mid-1990s; it urged armed resistance against the Serbs. In 1996, it
started to carry out armed attacks against the Serbian police forces in Kosovo, which struck back at UCK
militants with violence.

a. Can this situation be qualified as an armed conflict? If so, is it a non- international or an international
armed conflict? Can the UCK be considered a national liberation movement? (GC I-IV, Arts 2 and 3; P I, Art.
1(4); P II, Art. 1)

b. Can the UCK armed attacks against the Serbian police forces and the police attacks against UCK members
be considered as attacks against civilians? (P I, Arts 43, 50 and 51(3); CHIL Rules 1-6 )

24. The conflict escalated in February 1998. The UCK wrested temporary control over parts of Kosovo. Serb
forces and ethnic Albanian independence fighters clashed chiefly in the Drenica region, where the Serbian
police forces and the Yugoslav army bombed several villages, expelling the inhabitants from areas in which the
UCK was operating. Nearly 2,000 people died and almost 300,000 fled as a result. In March 1998, the Security
Council reacted by adopting resolution 1160 (1998) condemning the excessive use of force by the Serbian police
forces against civilians and establishing an arms embargo. On 23 September, it adopted resolution 1199 (1998),
in which it demanded a cease-fire in Kosovo, the withdrawal of Serbian forces and the opening of direct
negotiations. The resolution referred to the conflict as a threat to peace and security in the region.

a. Can this situation be qualified as an armed conflict? If so, is it a non-international or an international

armed conflict? Can the UCK now be considered a national liberation movement? Did the Security Council
resolutions influence your answer? (GC I-IV, Arts 2 and 3; P I, Preamble para. 5 and Art. 1(4); P II, Art. 1)

b. Could civilians be expelled on the grounds that UCK fighters had to be isolated? If the deportation was
intended to shield them from the fighting? Is deportation a war crime? (GC IV, Arts 49 and 147; P II, Art.
17; ICC Statute, Art. 8(2)(a)(vii) and (2)(e)(viii)) [See The International Criminal Court, [Part A.]]

25. The period between April and August 1998 saw no let-up in the fighting between Yugoslav troops and
ethnic Albanian independence fighters on the territory of Kosovo. On 15 May 1998, Yugoslav President
Milosevic and Kosovo Albanian leader Ibrahim Rugova met under the auspices of American mediator Richard
Holbrooke. Under the threat of NATO bombardments, the mediation resulted in October in President
Milosevic’s agreement to withdraw Serbian forces, to call a halt to the fighting and to accept the deployment of
2,000 unarmed OSCE monitors in Kosovo. The UCK rejected the agreement. Nevertheless, on 26 October
10,000 Serbian policemen withdrew from Kosovo and NATO suspended its threat to conduct air raids. In
December 1998, renewed fighting broke out between the UCK and Serbian forces.
 On what principles of IHL can third States or international organizations propose or demand the
deployment of monitors? (GC I-IV, Art. I, Arts 8/8/8/9 and 10/10/10/11 respectively; P I, Art. 89) What was
the point in dispatching unarmed monitors to ascertain compliance with IHL? What could the monitors do if
the Serbian authorities violated IHL? If UCK did so? What would have been the advantages and disadvantages
of deploying armed monitors?

26. On 30 January 1999, NATO announced that it would carry out air strikes against the territory of the
Federal Republic of Yugoslavia (FRY) if the latter did not meet the demands of the international community.
Negotiations were held between the parties to the conflict from 6 to 23 February in Rambouillet and from 15 to
18 March in Paris. The resulting peace agreement was agreed by the Kosovo Albanian delegation. The Serbian
delegation rejected it.

NATO considered that all efforts to reach a negotiated political settlement to the crisis in Kosovo had failed
and decided to launch air strikes against the FRY, a step announced by NATO Secretary General on 23 March
1999. On the same day, the Federal Republic of Yugoslavia published a decree stating that the threat of war was
imminent; the next day it declared a state of war.

[See Federal Republic of Yugoslavia, NATO Intervention]

a. Was there an international armed conflict between Yugoslavia and NATO? Between Yugoslavia and each of
the NATO member States? Between Yugoslavia and each of the States participating in the air strikes? Was
there a declaration of war? Is a declaration of war needed for international humanitarian law to apply?

b. Was the law of international armed conflict applicable to NATO forces, even though their objective was to
protect Kosovo Albanians from Serbian repression? Would the answer be the same on the hypothesis that the
bombings were the only means of protecting the Kosovans from genocide? (GC I-IV, Arts 1 and 2; P I, Preamble
para. 5)

c. Does the disputed lawfulness of NATO air strikes, without any armed aggression on the part of Yugoslavia,
and of Security Council authorization make the applicability of IHL to those attacks open to question? (P I,
Preamble para. 5)

27. The air strikes lasted a little less than three months, from 24 March to 8 June 1999. They gave rise to
several controversial incidents, some of which are described below.

A. On 12 April, a train transporting civilian passengers was destroyed as it came out of a tunnel on a bridge
near Grdelica; 10 civilians were killed and at least 15 wounded. The United States said that its intention had
been to destroy the bridge, which was part of Serbia’s communications network, and that the pilot would not
have seen the train while aiming at the bridge.

B. On 14 April, a convoy of ethnic Kosovo Albanians fleeing to Djakovica was attacked (according to the
Yugoslav authorities, between 70 and 75 civilians were killed and more than one hundred wounded). NATO
explained that the British pilot, who was flying at high altitude to avoid Yugoslav anti-aircraft guns, thought he
was attacking a convoy of armed and security forces that had just destroyed a number of Albanian villages to
the ground.

C. The Pancevo petrochemical complex was bombed on 15 and 18 April, with no loss of life.
D. Electricity-generating and transmitting stations were repeatedly attacked, the aim being, according to some
NATO officials, to cut off power to Yugoslavia’s military communications system; according to others, it was to
stir civilian unrest against President Milosevic by depriving the population of electrical power.

E. The bridge over the Danube in Novi Sad (located hundreds of kilometers from Kosovo) was destroyed.

F. The Chinese embassy in Belgrade was destroyed (3 civilians killed, 15 wounded). The United States
explained that this was a mistake caused by their intelligence services failing to accurately situate the Yugoslav
government’s supply office, which was the intended target of the attack.

G. On 23 April, just after 2 a.m., NATO deliberately bombed a Radio Television Serbia building in Belgrade; 16
people died and another 16 were seriously wounded. Certain NATO representatives justified the attack on the
grounds that the building was also used for military transmissions. Others, including the British Prime
Minister, said that Yugoslav media propaganda enabled President Milosevic to stay in power and encouraged
the population to take part in the violence against the Kosovans.

a. Analyze each of the above attacks so as to determine whether the controversy they gave rise to refers to
whether they were aimed at a military objective, whether collateral civilian losses were admissible or whether
the necessary precautions had been taken in the attack. Where different versions of the facts or different
explanations have been given, deal with each separately. (P I, Arts 51, 52(2) and 57; CIHL Rules 14-24)

b. Can an attack that “mistakenly” (contrary to the attacker’s intent) targets or affects civilians violate IHL?
Can it constitute a grave breach of IHL? A war crime? (P I, Arts 57 and 85(3); ICC statute, Arts 30and 32; CIHL
Rules 15-24)

c. Given that there was no international armed conflict between the United States and China, were the Chinese
diplomats in Belgrade protected under IHL? Were they protected persons? (GC I-IV, Art. 2; GC IV, Art. 4; P I,
Art. 50)

28. Furthermore, throughout the campaign, NATO forces used projectiles containing depleted uranium and
fragmentation bombs against military objectives. After the conflict, the remnants of those munitions were
deemed to put the civilian population and NATO’s international staff and troops deployed in Kosovo in danger.

Are such munitions prohibited by IHL? Can the use of a means of warfare be prohibited against military
objectives or combatants because of its long-term effects on the combatants? On the region’s civilian
population? On the environment? (P I, Arts 35, 36, 51(4)(a) and (5)(b) and 55; CIHL Rules 44-45, 70)

29. During NATO air strikes, three US soldiers stationed in Macedonia fell into the power of Yugoslavia. It was
not known whether they were abducted in Macedonia or had mistakenly crossed into Kosovo. The ICRC was
able to visit them only after four weeks of intense representations.

Are the US soldiers prisoners of war? Do doubts about the circumstances of their arrest in any way affect
their status? When should they have been repatriated? If they were abducted in Macedonia, should they have
been released before the end of the hostilities? (GC III, Arts 2, 4, 118 and 126(5); CIHL Rule 128)

30. With the launch of air strikes, the forces of the Federal Republic of Yugoslavia and of the Republic of Serbia
stepped up their attacks against the Kosovo Albanians; in the following months they forcibly expelled over
740,000 ethnic Albanian Kosovans, about one third of the total ethnic Albanian population. An undetermined
number of ethnic Albanian Kosovans were killed during operations conducted by the Yugoslav and Serbian
forces. A smaller number were killed in NATO air strikes.

a. Was it unlawful for the Yugoslav and Serbian forces to forcibly expel the population of Kosovo? (GC IV, Arts
49 and 147; P II, Art. 17; ICC Statute, Arts 8(2)(a)(vii) and (2)(e)(viii))

b. If so, was the forced displacement of the population a war crime or a crime against humanity? (ICC Statute,
Arts 7(1)(d), (2)(d), 8(2)(a)(vii), (2)(e)(viii))

c. Can it be said that acts of genocide were committed against the population of Kosovo? (ICC Statute, Art. 6)

d. Can deportation be justified by NATO air strikes and by the fact that UCK was allied with NATO and that
the Albanian population of Kosovo wanted to be liberated by NATO? Since the massacres and population
displacements intensified when the air strikes started, can NATO be partly held responsible for the plight of the
civilian population?

e. Does IHL also protect the Kosovans against NATO? (P I, Arts 49(2) and 50)

Paragraphs 31 to 37
31. The ICRC withdrew its 19 representatives from Kosovo on 29 March 1999 because of the worsening security
situation brought about by the Serb paramilitary forces. It remained active, however, in the neighboring
republics, assisting Kosovan refugees. After having negotiated its return to Kosovo with the Serbian authorities
and following a survey on security conditions, the ICRC re-opened its office and resumed its humanitarian
activities in the province in late May 1999.

a. Was the ICRC entitled to be present in Kosovo? In Belgrade? (GC I-IV, Art. 3, Arts
9/9/9/10respectively; GC III, Art. 126(5); GC IV, Art. 143(5))

b. Was the ICRC entitled to be in Kosovo by virtue of IHL or by virtue of a bilateral agreement with
Yugoslavia? Was Yugoslavia obliged to ensure adequate conditions of security for ICRC delegates? (GC III, Art.
126(5); GC IV, Art. 143(5))

c. Was the ICRC mission in Kosovo a failure because it withdrew? Should the ICRC have withdrawn from all of
Yugoslavia? In what circumstances does the ICRC withdraw from a country?

d. If the ICRC had been able to stay in Kosovo throughout the conflict, what could it have done to help the
Albanian population?

32. On 27 May 1999, the Chief Prosecutor of the ICTY, Ms Louise Arbour, issued an indictment against
Slobodan Milosevic, charging him with crimes against humanity and violations of the law and customs of war
in Kosovo. (See ICTY web site: http://www.icty.org)

a. Why was Slobodan Milosevic not indicted for grave breaches of the Geneva Conventions in Kosovo? (GC IV,
Arts 2, 4 and 147)
b. Given that Slobodan Milosevic in person did not necessarily commit crimes against humanity and
violations of the laws and customs of war, by virtue of what principle was the ICTY Chief Prosecutor able to
indict him for those crimes? (ICTY Statute, Art. 7) [See UN, Statute of the ICTY [Part C.]]

c. As head of State, didn’t Slobodan Milosevic benefit from immunity for acts committed while he was in
office?

33. On 3 June 1999, the Serbian parliament agreed to an international plan that brought an end to the conflict
in Kosovo. The plan provided for the deployment of an international force under United Nations auspices, the
withdrawal of Serbian forces from Kosovo and the return of refugees. On 10 June 1999, the Serbian forces that
left Kosovo were replaced by an international NATO force of 35,000 men mandated by United Nations Security
Council resolution 1244 (1999): KFOR. The Security Council resolution also established the United Nations
Interim Administration Mission in Kosovo (UNMIK) to administer the territory on a provisional basis. Kosovo
was thus placed under international administration but remained under Yugoslav sovereignty. On 21 June, an
agreement to demilitarize the UCK was signed between the prime minister of the “provisional government” and
the KFOR Commander. All legislative and executive authority relating to Kosovo, including the administration
of justice, was conferred on UNMIK and exercised by the Secretary-General’s Special Representative (initially
Bernard Kouchner, then Soren Jessen-Petersen, and at present [in 2010] Lamberto Zannier).

The end of the bombings did not spell the end to the climate of political violence in Kosovo. Non-Albanians
were the victims of acts of violence referred to by some people as “reverse ethnic cleansing”. It was in this
context that the bodies of 14 murdered Serbs were discovered in the village of Gracko, on 23 July 1999.
Although almost 800,000 ethnic Albanian refugees were able to return to their homes, about 200,000 Serbs
and Roma people had to leave.

a. How would you qualify the situation in Kosovo after the withdrawal of the Serbian forces? (GC I-IV, Arts
2 and 3; P I, Art. 1)

b. Did the “reverse ethnic cleansing” violate IHL? (GC IV, Arts 3, 27 and 32; P II,
Arts 4(2)(a) and (b)and 17; CIHL Rules 87 and 90)

c. Does the fact that the Serbian victims of “reverse ethnic cleansing” previously tolerated much harsher abuse
of the Albanian population justify the abuse to which they were subjected? Justify a degree of understanding on
the part of KFOR and UNMIK for that subsequent abuse? (GC IV, Arts 3, 27and 33(3); P II, Art.
4(2)(a) and (b))

d. Is Kosovo a territory occupied by KFOR? Even though its deployment was provided for in a Security
Council resolution? Even though that deployment was in the interests of the local population? Even though it
was agreed to by Yugoslavia? (GC IV, Art. 2; P I, Preamble para. 5)

e. What rules of the Fourth Geneva Convention on occupied territories are incompatible with the objectives of
the KFOR and UNMIK presence? What rules might UNMIK find useful? If IHL were applicable, would UNMIK
be obliged to prevent the attacks against the minorities in Kosovo? In that case, could all legislative and
executive authorities relating to Kosovo, including the administration of justice, be conferred on an
international civil servant? (HR, Arts 42 and 43; GC IV, Arts 64-66)

34. At the end of 2000, ethnic Albanians in Presevo Valley (southern Serbia) formed the Ushtria Clirimtare e
Presheva, Medvegja e Bujanovc (UCPMB), an armed movement that mirrored the UCK. The movement sought
to make Presevo Valley, a 5-kilometer-wide strip of land bordering Kosovo, a part of the province. Although the
valley was situated in Serbia, the Yugoslav army had had to withdraw from it under the agreements with KFOR.
The population was about 80 per cent Albanian. The UCPMB launched a guerrilla war pitting its forces against
those of Serbia.

What is the status of this situation under IHL? What would be its status if the allegations that the UCPMB
was equipped and financed by the UCK were true? If the UCK had overall control on the UCPMB? What were
KFOR’s and UNMIK’s obligations towards the UCPMB? (GC I-IV, Arts 1-3; P II, Art. 1)

35. In the Former Yugoslav Republic of Macedonia, the Albanian minority considered that it was not equitably
represented on State bodies. There were few Albanian-speakers, for example, in the security forces, even in
areas where Albanian-speakers lived in majority. On 16 February 2001, the UCKM (the Macedonian faction of
the UCK) started to occupy a few Albanian-speaking villages situated near the borders with Kosovo and Serbia.
In March 2001, it started to promote the secession of the north-western part of Macedonia and its Albanian
majority. On 14 March 2001, during an Albanian demonstration on the streets of Tetovo, a dozen UCKM
members dispersed among the demonstrators shot at the police. The next day, the UCKM shelled the centre of
Tetovo, which was controlled by Macedonian forces.

a. How would you qualify this situation under IHL? How would it be qualified if the allegations that the
UCKM was equipped and financed by the UCK were true? If the UCK had overall control on the UCKM? (GC I-
IV, Arts 2 and 3; P II, Art. 1)

b. Does IHL prohibit UCKM members from mixing with the demonstrators? From attacking, thus scattered
among the demonstrators, the Macedonian police forces? (P I, Arts 37 (1)(c), 44(3) and 51(7); CIHL Rule 65)

36. Civilians suffered during hostilities, in particular in the Tetovo region, where it was extremely difficult to
obtain food, medicines and other basic necessities. Hundreds of people were forced by the fighting to flee their
homes. Issuing an ultimatum, the Macedonian security forces encouraged the Albanian-speaking civilians to
leave the villages controlled by the UCKM so that they could attack the combatants without endangering the
civilian population. The UCKM often prevented the civilians from leaving.

a. Were the Macedonian authorities obliged to allow supplies into the villages controlled by the UCKM? What
prior conditions could they set? Would those conditions have been realistic? (GC IV, Art. 23; P I, Art. 70; P II,
Art. 18(2))

b. Were the authorities’ efforts to make civilians living in the villages controlled by the UCKM flee lawful
under IHL? (GC IV, Arts 49 and 147; P II, Art. 17)

c. Can the UCKM prevent civilians from leaving the villages it controls? (P I, Arts 51(7) and 58; CIHL Rules
22-24)

37. On 13 August 2001, after seven months of clashes between the UCKM rebels and the security forces, all the
parties concerned signed a peace agreement that provided for enhanced rights for the Albanian-speaking
minority, the disarmament of the UCKM and an amnesty for the rebels. On 22 August, the first NATO
contingents were deployed in Macedonia as part of Operation “Essential Harvest”, to collect the rebels’
weapons. The first UCKM weapons were collected on 27 August 2001.

[The length of this case study reflects the endless waves of conflict that ravaged the Balkans for many years.
The authors are hopeful that future events will not add to it.]
2. At the end of active hostilities

RELEASE AND REPATRIATION

ARTICLE 118 [ Link ]

Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.
In the absence of stipulations to the above effect in any agreement concluded between the Parties to the
conflict with a view to the cessation of hostilities, or failing any such agreement, each of the Detaining Powers
shall itself establish and execute without delay a plan of repatriation in conformity with the principle laid down in
the foregoing paragraph.
In either case, the measures adopted shall be brought to the knowledge of the prisoners of war.
The costs of repatriation of prisoners of war shall in all cases be equitably apportioned between the Detaining
Power and the Power on which the prisoners depend. This apportionment shall be carried out on the following
basis:

(a) If the two Powers are contiguous, the Power on which the prisoners of war depend shall bear the costs of
repatriation from the frontiers of the Detaining Power.

(b) If the two Powers are not contiguous, the Detaining Power shall bear the costs of transport of prisoners of
war over its own territory as far as its frontier or its port of embarkation nearest to the territory of the Power on
which the prisoners of war depend. The Parties concerned shall agree between themselves as to the equitable
apportionment of the remaining costs of the repatriation. The conclusion of this agreement shall in no
circumstances justify any delay in the repatriation of the prisoners of war.
DETAILS OF PROCEDURE

ARTICLE 119 [ Link ]

Repatriation shall be effected in conditions similar to those laid down in Articles 46 [ Link ] to 48 inclusive of the
present Convention for the transfer of prisoners of war, having regard to the provisions of Article 118 [ Link
] and to those of the following paragraphs.
On repatriation, any articles of value impounded from prisoners of war under Article 18 [ Link ] , and any
foreign currency which has not been converted into the currency of the Detaining Power, shall be restored to
them. Articles of value and foreign currency which, for any reason whatever, are not restored to prisoners of
war on repatriation, shall be despatched to the Information Bureau set up under Article 122 [ Link ] .
Prisoners of war shall be allowed to take with them their personal effects, and any correspondence and parcels
which have arrived for them. The weight of such baggage may be limited, if the conditions of repatriation so
require, to what each prisoner can reasonably carry. Each prisoner shall in all cases be authorized to carry at
least twenty-five kilograms.
The other personal effects of the repatriated prisoner shall be left in the charge of the Detaining Power which
shall have them forwarded to him as soon as it has concluded an agreement to this effect, regulating the
conditions of transport and the payment of the costs involved, with the Power on which the prisoner depends.
Prisoners of war against whom criminal proceedings for an indictable offence are pending may be detained
until the end of such proceedings, and, if necessary, until the completion of the punishment. The same shall
apply to prisoners of war already convicted for an indictable offence.
Parties to the conflict shall communicate to each other the names of any prisoners of war who are detained
until the end of the proceedings or until punishment has been completed.
By agreement between the Parties to the conflict, commissions shall be established for the purpose of
searching for dispersed prisoners of war and of assuring their repatriation with the least possible delay.

a) when do active hostilities end?

Eritrea/Ethiopia, Partial Award on POWs

A. Prisoners of War, Ethiopia’s Claim 4 - paras 1 to 80

[Source: Eritrea-Ethiopia Claims Commission, Partial Award, Prisoners of War, Ethiopia’s Claim 4, between
the Federal Democratic Republic of Ethiopia and the State of Eritrea. The Hague, July 1, 2003. The Permanent
Court of Arbitration, the Hague. Footnotes partially reproduced. Full Awards available on http://www.pca-
cpa.org/showpage.asp?pag_id=1151]

PARTIAL AWARD
Prisoners of War
Ethiopia’s Claim 4
Between The Federal Democratic Republic of Ethiopia
and the State of Eritrea

I. INTRODUCTION

A. Summary of the Positions of the Parties

1. This Claim (“Ethiopia’s Claim 4,” “ET04”) has been brought to the Commission by the Claimant, the
Federal Democratic Republic of Ethiopia (“Ethiopia”), pursuant to Article 5 of the Agreement between
the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of
Eritrea of December 12, 2000 (“the Agreement”). The Claim seeks a finding of the liability of the
Respondent, the State of Eritrea (“Eritrea”), for loss, damage and injury suffered by the Claimant as a
result of the Respondent’s alleged unlawful treatment of its Prisoners of War (“POWs”) who were
nationals of the Claimant. In its Statement of Claim, the Claimant requested monetary compensation,
and in its Memorial, it proposed that compensation be determined by a mass claims process based upon
the five permanent camps in which those POWs were held.
2. The Respondent asserts that it fully complied with international law in its treatment of POWs.

B. The Eritrean POW Camps

3. Eritrea interned a total of approximately 1,100 Ethiopian POWs, virtually all male, between the start of
the conflict in May 1998 and August 2002, when the remaining Ethiopian POWs registered by the
International Committee of the Red Cross (“ICRC”) were released.
4. Eritrea utilized five permanent camps, some only briefly: Barentu, Embakala, Digdigta, Afabet and
Nakfa (also known as Sahel). Eritrea utilized these camps one after the other and, with the exception of
Barentu, closed each camp upon transfer of the POWs to the next camp.
5. Eritrea used facilities at Badme, Asmara, Tesseney and Barentu as transit camps during evacuation of
the Ethiopian POWs from the various fronts. POWs were typically held in the transit camps for several
days or weeks. [...]

C. General Comment

12. As the findings in this Award and in the related Award in Eritrea’s Claim 17 describe, there were
significant difficulties in both Parties’ performance of important legal obligations for the protection of
prisoners of war. Nevertheless, the Commission must record an important preliminary point that
provides essential context for what follows. Based on the extensive evidence adduced during these
proceedings, the Commission believes that both Parties had a commitment to the most fundamental
principles bearing on prisoners of war. Both parties conducted organized, official training programs to
instruct their troops on procedures to be followed when POWs are taken. In contrast to many other
contemporary armed conflicts, both Eritrea and Ethiopia regularly and consistently took POWs. Enemy
personnel who were hors de combat were moved away from the battlefield to conditions of greater
safety. Further, although these cases involve two of the poorest countries in the world, both made
significant efforts to provide for the sustenance and care of the POWs in their custody.
13. There were deficiencies of performance on both sides, sometimes significant occasionally grave.
Nevertheless, the evidence in these cases shows that both Eritrea and Ethiopia endeavored to observe
their fundamental humanitarian obligations to collect and protect enemy soldiers unable to resist on
 the battlefield. The Awards in these cases, and the difficulties that they identify, must be read against
this background. [...]

IV. THE MERITS

A. Applicable law

22. Article 5, paragraph 13, of the Agreement provides that “in considering claims, the Commission shall
apply relevant rules of international law.” Article 19 of the Commission’s Rules of Procedure is modelled
on the familiar language of Article 38, paragraph 1, of the Statute of the International Court of Justice.
It directs the Commission to look to:
1. International conventions, whether general or particular, establishing rules expressly recognized
by the parties;
2. International custom, as evidence of a general practice accepted as law;
3. The general principles of law recognized by civilized nations;
4. Judicial and arbitral decisions and the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of rules of law.
23. The most obviously relevant source of law for the present Award is Geneva Convention III. Both Parties
refer extensively to that Convention in their pleadings, and the evidence demonstrates that both Parties
relied upon it for the instruction of their armed forces and for the rules of the camps in which they held
POWs. The Parties agree that the Convention was applicable from August 14, 2000, the date of Eritrea’s
accession, but they disagree as to its applicability prior to that date.
24. Ethiopia signed the four Geneva Conventions in 1949 and ratified them in 1969. Consequently, they
were in force in Ethiopia in 1993 when Eritrea became an independent State. Successor States often
seek to maintain stability of treaty relationships after emerging from within the borders of another State
by announcing their succession to some or all of the treaties applicable prior to their independence.
Indeed, treaty succession [...] may happen automatically for certain types of treaties. However, the
Commission has not been shown evidence that would permit it to find that such circumstances here,
desirable though such succession would be as a general matter. From the time of its independence from
Ethiopia in 1993, senior Eritrean officials made clear that Eritrea did not consider itself bound by the
Geneva Conventions.
25. During the period of the armed conflict and prior to these proceedings, Ethiopia likewise consistently
maintained that Eritrea was not a party to the Geneva Conventions. The ICRC, which has a special
interest and responsibility for promoting compliance with the Geneva Conventions, likewise did not at
that time regard Eritrea as a party to the Conventions.
26. Thus, it is evident that when Eritrea separated from Ethiopia in 1993 it has a clear opportunity to make
a statement of its succession to the Conventions, but in evidence shows that it refused to do so. It
consistently refused to do so subsequently, and in 2000, when it decided to become a party to the
Conventions, it did so by accession, not by succession. While it may be that continuity of treaty
relationships often can be presumed, absent facts to the contrary, no such presumption could properly
be made in the present case in view of these facts. These unusual circumstances render the present
situation very different from that addressed in the Judgement by the Appeals Chamber of the
International Tribunal for the Former Yugoslavia in the Celebici Case [footnote 6: Celebici Case (The
Prosecutor v. Delalic et al.), 2001, ICTY Appeals Chamber Judgement Case No. IT-96-21-A (Feb. 20).]
It is clear here that neither Eritrea, Ethiopia nor the depository of the Conventions, the Swiss Federal
Council, considered Eritrea party to the Conventions until it acceded to them on August 14, 2000. Thus,
from the outbreak of the conflict in May 1998 until August 14, 2000, Eritrea was not a party to Geneva
Convention III. Ethiopia’s argument to the contrary, in reliance upon Article 34 of the Vienna
Convention on Succession of States in Respect of Treaties, cannot prevail over these facts.
27. Although Eritrea was not a party to the Geneva Conventions prior to its accession to them, the
Conventions might still have been applicable during the armed conflict with Ethiopia, pursuant to the
final provision of Article 2 common to all four Conventions, which states:

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are
parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the
Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
 28. However, the evidence referred to above clearly demonstrates that, prior to its accession, Eritrea had
not accepted the Conventions. This non-acceptance was also demonstrated by Eritrea’s refusal to allow
the representatives of the ICRC to visit the POWs it held until after its accession to the Conventions.
29. Consequently, the Commission holds that, with respect to matters prior to August 14, 2000, the law
applicable to the armed conflict between Eritrea and Ethiopia is customary international law. In its
pleadings, Eritrea recognizes that, for most purposes, “the distinction between customary law regarding
POWs and the Geneva Convention III is not significant.” It does, however, offer as examples of the more
technical and detailed provisions of the Convention that it considers not applicable as customary law
the right of the ICRC to visit POWs, the permission of the use of tobacco in Article 26, and the
requirement of canteens in Article 28. It also suggests that payment of POWs for labor and certain
burial requirements for deceased POWs should not be considered part of customary international law.
Eritrea cites the von Leeb decision of the Allied Military Tribunal in 1949 as supportive of its position
on this question [footnote 10: U.S. v. Wilhelm von Leeb et al., in TRIALS OF WAR CRIMINALS
BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW, No 10,
Volume XI, p. 462 (United States Government Printing Office, Washington D.C. 1950).]
30. Given the nearly universal acceptance of the four Geneva Conventions of 1949, the question of the
extent to which their provisions have become part of customary international law arises today only
rarely. The Commission notes that the von Leeb case (which found that numerous provisions at the core
of the 1929 Convention had acquired customary status) addressed the extent to which the Provisions of
a convention concluded in 1929 had become part of the customary international law during the Second
World War, that is, a conflict that occurred ten to sixteen years later. In the present case, the
Commission faces the question of the extent to which the provisions of a convention concluded in 1949
and since adhered to by almost all States had become part of customary international law during a
conflict that occurred fifty years later. Moreover, treaties, like the Geneva Conventions of 1949, that
develop international humanitarian law are, by their nature, legal documents that build upon the
foundation laid by earlier treaties and by customary international law. These treaties are concluded for
the purpose of creating a treaty law for the parties to the convention and for the related purpose of
codifying and developing customary international law that is applicable to all nations. The Geneva
Conventions of 1949 successfully accomplished both purposes.
31. Certainly, there are important, modern authorities for the proposition that the Geneva Conventions of
1949 have largely become expressions of customary international law, and both Parties to this case
agree. The mere fact that they have obtained nearly universal acceptance supports this conclusion.
There are also similar authorities for the proposition that rules that commend themselves to the
international community in general, such as rules of international humanitarian law, can more quickly
become part of customary international law than other types of rules found in treaties. The Commission
agrees.
32. Consequently, the Commission holds that the law applicable to this Claim is customary international
law, including customary international humanitarian law as exemplified by the relevant parts of the
four Geneva Conventions of 1949. The frequent invocation of provisions of Geneva Convention III by
both Parties in support of their claims and defenses is fully consistent with this holding. Whenever
either Party asserts that a particular relevant provision of these Conventions should not be considered
part of customary international law at the relevant time, the Commission will decide that question, and
the burden of proof will be on the asserting Party. [...]

B. Evidentiary Issues
1. Quantum of Proof Required [...]

38. The Commission does not accept any suggestion that, because some claims may involve allegations of
potentially criminal individual conduct, it should apply an even higher standard of proof corresponding
to that in individual criminal proceedings. The Commission is not a criminal tribunal assessing
individual criminal responsibility. It must instead decide whether there have been breaches of
international law based on normal principles of state responsibility. [...]

2. Proof of Facts
 39. Ethiopia presented a large volume of documentation in support of its claims. [...] Ethiopia also
presented three types of documents recording in differing ways information regarding the experiences
of individual prisoners. It submitted thirty formal written declarations from former POWs signed by the
declarants and containing affirmations of the accuracy of the translation and solemn representations
that the declaration was truthful. During the hearing, counsel for Ethiopia indicated that it relied
primarily on these declarations. Similar signed declarations also provided the heart of the evidence for
Eritrea’s claims.
40. Ethiopia also submitted multiple volumes of what were in fact forms for collecting claims. These were
lengthy documents filled in by a former POW or a person writing for him, responding at varying length
to detailed questions regarding conditions and experiences in each of Eritrea’s POW camps. Ethiopia
also filed four volumes containing typewritten distillations of the very brief answers some former
prisoners gave to the claims questionnaires (generally involving pages containing only “yes” or “no”
answers).
41. Eritrea objected to the second and third types of documents, arguing that the phrasing of the questions,
the collection methodology and other factors inevitably resulted in inflated, inaccurate and unreliable
responses. The Commission agrees that these documents are of uncertain probative value. It has not
used them in arriving at the factual judgments that follow: instead it has relied on the formal signed
declarations submitted by each Party, as supplemented by the testimony at the hearing and other
documents in the record. [...]

3. Evidence under the Control of the ICRC

45. Throughout the conflict, representatives of the ICRC visited Ethiopia’s camps. Beginning late in August
2000, the ICRC also began visiting Eritrea’s Nakfa camp. Both Parties indicated that they possess ICRC
reports regarding these camp visits, as well as other relevant ICRC communications.
46. The Commission hoped to benefit from the ICRC’s experienced and objective assessment of conditions
in both Parties’camps. It asked the Parties to include the ICRC reports on camp visits in their written
submissions or to explain their inability to do so. Both responded that they wished to do so but that the
ICRC opposed allowing the Commission access to these materials. The ICRC maintained that they could
not be provided without ICRC consent, which would not be given. [...]

48. The ICRC made available to the Commission and the Parties copies of all relevant public documents,
but it concluded that it could not permit access to other information. That decision reflected the ICRCs
deeply held belief that its ability to perform its mission requires strong assurances of confidentiality.
The Commission has great respect for the ICRC and understands the concerns underlying its general
policies of confidentiality and non-disclosure. Nevertheless, the Commission believes that, in the
unique situation here, where both parties to the armed conflict agreed that these documents should be
provided to the Commission, the ICRC should not have forbidden them from doing so. Both the
Commission and the ICRC share an interest in the proper and informed application of international
humanitarian law. Accordingly, the Commission must record its disappointment that the ICRC was not
prepared to allow it access to these materials.

C. Violations of the Law

1. Organizational Comment

49. Ethiopia alleged extensive violations of applicable legal obligations in Eritrea’s POW camps. Its legal
claims were arranged in eleven separate categories, several with multiple subsidiary elements. Ethiopia
alleged violations of all or almost all of the following eleven categories with respect to each of Eritrea’s
five camps:
o Capture of POWs and their evacuation to the camps;
o Physical and mental abuse in the camps;
o Lack of adequate medical care;
o Unhealthy camp conditions;
o Failure to maintain POWs well being;
 o Impermissible forced labor;
o Improper handling of deaths;
o Lack of complaint procedures;
o Prohibiting communication with the exterior;
o Failure to post camp regulations; and
o Inhumane conditions during transfer from the camps.
50. In its written and oral presentations, Ethiopia clearly explained the factors leading it to structure its
claims this way. However, the result is a matrix of over fifty issues, many with several subsidiary
elements, for assessment and decision. Of greater concern, the Commission found that this complex
and fragmented structure served to conflate very serious matters with others of much less gravity.
Moreover, given the level of evidence presented and the limited time available for the Commission to
complete its work on all claims, it is clear that the Commission must focus its attention on the
substantive core of the claims.
51. Accordingly, the Commission has grouped several of Ethiopia’s claims together or has otherwise re-
aligned their elements in order to give greater weight to and clearer focus on those matters it sees as
being of greatest concern.
52. As commentators frequently have observed, Geneva Convention III, with its 143 Articles and five
Annexes, is an extremely detailed and comprehensive code for the treatment of POWs. Given its length
and complexity, the Convention mixes together, sometimes in a single paragraph, obligations of very
different character and importance. Some obligations, such as Article 13’s requirement of humane
treatment, are absolutely fundamental to the protection of POWs’ life and health. Other provisions
address matters of procedure or detail that may help ease their burdens, but are not necessary to ensure
their life and health.
53. Under customary international law, as reflected in Geneva Convention III, the requirement of
treatment of POWs as human beings is the bedrock upon which all other obligations of the Detaining
Power rest. At the core of the Convention regime are the legal obligations to keep POWs alive and in
good health. The holdings made in this section are organized to emphasize these core legal obligations.
54. It should also be stated at the outset that the Commission does not see its task to be the determination
of liability of a Party for each individual incident of illegality suggested by the evidence. Rather, it is to
determine liability for serious violations of the law by the Parties, which are usually illegal acts or
omissions that were frequent or pervasive and consequently affected significant numbers of victims.
These parameters are dictated by the limit of what is feasible for the two Parties to brief and argue and
for the Commission to determine in light of the time and resources made available by the Parties.

2. Eritrea’s Refusal to Permit the ICRC to Visit POWs

55. From the outset of the armed conflict in 1998, the ICRC was permitted by Ethiopia to visit the Eritrean
POWs and the camps in which they were held. It was also permitted to provide relief to them and to
assist them in corresponding with their families in Eritrea, although there is evidence that Eritrea
refused to permit communications from those POWs to be passed on to their families. In Eritrea, the
ICRC had a limited role in the 1998 repatriation of seventy sick or wounded POWs, but all efforts by the
ICRC to visit the Ethiopian POWs held by Eritrea were refused by Eritrea until August 2000, just after
Eritrea acceded to the 1949 Geneva Conventions. The Commission must decide whether, as alleged by
Ethiopia, such refusal by Eritrea constituted a violation of its legal obligations under the applicable law.
56. Eritrea argues that the right of access by the ICRC to POWs is a treaty-based right and that the
provision of Geneva Convention III granting such access to the ICRC should not be considered
provisions that express customary international law. While recognizing that most of the provisions of
the Conventions have become customary law, Eritrea asserts that the provisions dealing with the access
of the ICRC are among the detailed or procedural provisions that have not attained such status.
57. That the ICRC did not agree with Eritrea is demonstrated by a press statement it issued on May 7, 1999,
in which it recounted its visits to POWs and interned civilians held by Ethiopia and said: “In Eritrea,
meanwhile, the ICRC is pursuing its efforts to gain access as required by the Third Geneva Convention,
to Ethiopian POWs captured since the conflict erupted last year”.
58. The ICRC is assigned significant responsibilities in a number of articles of the Convention. These
provisions make clear that the ICRC may function in at least two different capacities – as a
humanitarian organization providing relief and as an organization providing necessary and vital
 external scrutiny of the treatment of POWs, either supplementary to a Protecting Power or as a
substitute when there is no Protecting Power. There is not evidence before the Commission that
Protecting Powers were proposed by either Ethiopia or Eritrea, and it seems evident that none was
appointed. Nevertheless, the Convention clearly requires external scrutiny of the treatment of POWs
and, in article 10, where there is no Protecting Power or other functioning oversight body, it requires
Detaining Powers to “accept the offer of the services of a humanitarian organization, such as the
International Committee of the Red Cross, to assume the humanitarian functions performed by
Protecting Powers under the present Convention.” In that event, Article 10 also provides that all
mention of Protecting Powers in the Convention applies to such substitute organizations.
59. The right of the ICRC to have access to POWs is not limited to a situation covered by Article 10 in which
it serves as a substitute for a Protecting Power. Article 126 specifies clear and critical rights of
Protecting Powers with respect to access to camps and to POWs, including the right to interview POWs
without witnesses, and it states that the delegates of the ICRC “shall enjoy the same prerogatives.”
Ethiopia relies primarily on Article 126 in its allegation that Eritrea violated its legal obligations by
refusing the ICRC access to its POWs.
60. Professor Levie points out in his monumental study of the treatment of POWs in international armed
conflicts that the ICRC “has played an indispensable humanitarian role in every armed conflict for more
than a century.” [...]
61. The Commission cannot agree with Eritrea’s argument that provisions of the Convention requiring
external scrutiny of the treatment of POWs and access to POWs by the ICRC are mere details or simply
implementing procedural provisions that have not, in half a century, become part of customary
international law. These provisions are an essential part of the regime for protecting POWs that has
developed in international practise, as reflected in Geneva Convention III. These requirements are,
indeed, “treaty-based” in the sense that they are articulated in the Convention; but, as such, they
incorporate past practices that had standing of their own in customary law, and they are of such
importance for the prospects of compliance with the law that it would be irresponsible for the
Commission to consider them inapplicable as customary international law, […] [a]s the International
Court of Justice said in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons.
[...] [See ICJ, Nuclear Weapons Advisory Opinion, para. 79]
62. For the above reasons, the Commission holds that Eritrea violated customary international law from
May 1998 until August 2000 by refusing to permit the ICRC to send its delegates to visit all places
where Ethiopian POWs were detained, to register these POWs, to interview them without witnesses,
and to provide them with the customary relief and services. Consequently, Eritrea is liable for the
suffering caused by that refusal.

3. Mistreatment of POWs at Capture and its Immediate Aftermath

63. Of the thirty Ethiopian POW declarants, at least twenty were already wounded at capture and nearly all
testified to treatment of the sick or wounded by Eritrean forces upon capture at the front and during
evacuation. Consequently, in addition to the customary international law standards reflected in Geneva
Convention III, the Commission also applies the standards reflected in the Geneva Convention for the
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field on August 12,
1949 (“Geneva Convention I”). For a wounded or sick POW, the provisions of Geneva Convention I
apply along with Geneva Convention III. Among other provisions, Article 12 of Geneva Convention I
demands respect and protection of wounded or sick members of the armed forces in “all
circumstances”.
64. A State’s obligation to ensure humane treatment of enemy soldiers can be severely tested in the heated
and confused moments immediately following capture or surrender and during evacuation from the
battlefront to the rear. Nevertheless, customary international law as reflected in Geneva Conventions I
and III absolutely prohibits the killing of POWs, requires the wounded and sick to be collected and
cared for, the dead to be collected, and demands prompt and humane evacuation of POWs.

a. Abusive Treatment
 65. Ethiopia alleged that Eritrean troops regularly beat and frequently killed Ethiopians upon capture and
its immediate aftermath. Ethiopia presented a prima facie case, through clear and convincing evidence,
to support this allegation.
66. One-third of the Ethiopian POW declarations contain accounts of Eritrean soldiers deliberately killing
Ethiopian POWs, most wounded, at capture or evacuation. Particularly troubling are accounts in three
declarations of Eritrean officers ordering troops to kill Ethiopian POWs or beating them for not doing
so. More than half of the Ethiopian POW declarants described repeated and brutal beatings, both at the
front and during evacuation, including blows purposefully inflicted on wounds. Fortunately, these
accounts were countered to a degree by several other accounts from Ethiopian declarants of Eritrean
officers and soldiers intervening to curtail physical abuse and prevent killings.
67. In rebuttal, Eritrea offered detailed and persuasive evidence that Eritrean troops and officers had
received extensive instruction during their basic training, both on the basic requirements of the Geneva
Conventions on the taking of POWs and on the policies and practices of the Eritrean People’s Liberation
Front (“EPLF”) in the war against the prior Ethiopian government, the Derg, for independence, which
had emphasized the importance of humane treatment of prisoners. What is lacking in the record,
however, is evidence of what steps Eritrea took, if any, to ensure that its forces actually put this
extensive training to use in the field. There is no evidence that Eritrea conducted inquiries into
incidents of physical abuse or pursued disciplinary measures under Article 121 of Geneva Convention
III.
68. The Commission concludes that Eritrea has not rebutted the prima facie case presented by Ethiopia
and, consequently, holds that Eritrea failed to comply with the fundamental obligation of customary
international law that POWs, even when wounded, must be protected and may not, under any
circumstances, be killed. Consequently, Eritrea is liable for failing to protect Ethiopian POWs from
being killed at capture or its immediate aftermath, and for permitting beatings and other physical abuse
of Ethiopian POWs at capture or its immediate aftermath.

b. Medical Care Immediately Following Capture

69. Ethiopia alleges that Eritrea failed to provide necessary medical attention to Ethiopian POWs after
capture and during evacuation, as required under customary international law reflected in Geneva
Conventions I (Article 12) and III (Articles 20 and 15). Many Ethiopian declarants testified that their
wounds were not cleaned and bandaged at or shortly after capture, leading to infection and other
complications. Eritrea presented rebuttal evidence that its troops provided rudimentary first aid as
soon as possible, including in transit camps.
70. The Commission believes that the requirement to provide POWs with medical care during the initial
period after capture must be assessed in light of the harsh conditions on the battlefield and the limited
extent of medical training and equipment available to front line troops. On balance, and recognizing the
logistical and resource limitations faced by both Parties to the conflict, the Commission finds that
Eritrea is not liable for failing to provide medical care to Ethiopian POWs at the front and during
evacuation.

c. Evacuation Conditions

71. Ethiopia also alleges that, in addition to poor medical care, Eritrea failed to ensure humane evacuation
conditions. As reflected in Articles 19 and 20 of Geneva Convention III, the Detaining Power is obliged
to evacuate prisoners humanely, safely and as soon as possible from combat zones; only if there is a
greater risk in evacuation may the wounded or sick be temporarily kept in the combat zone, and they
must not be unnecessarily exposed to danger. The measure of a humane evacuation is that, as set out in
Article 20, POWs should be evacuated “in conditions similar to those for the forces of the Detaining
Power.”
72. Turning first to the timing of evacuation, Eritrea submitted clear and convincing evidence that, given
the reality of battle, the great majority of Ethiopians POWs were evacuated from the various fronts in a
timely manner. Despite one disquieting incident in which a wounded Ethiopian POW allegedly was
forced to spend a night on top of a trench while artillery exchanges occurred and his Eritrean captors
 took refuge in the trench, the Commission concludes that Eritrea generally took the necessary measures
to evacuate its prisoners promptly.
73. Timing aside, the Ethiopian POW declarants described extremely onerous conditions of evacuation. The
POWs were forced to walk from the front for hours or days over rough terrain, often in pain from their
own wounds, often carrying wounded comrades and Eritrean supplies, often in harsh weather, and
often with little or no food and water. Eritrea offered rebuttal evidence that its soldiers faced nearly the
same unavoidably difficult conditions, particularly given the lack of paved roads in Eritrea.
74. Subject to the holding above concerning unlawful physical abuse during evacuation and with one
exception, the Commission finds that Eritrean troops satisfied the legal requirements for evacuations
from the battlefield under the harsh geographic, military and logistical circumstances. The exception is
the Eritrean practice of seizing the footwear of all Ethiopian POWs, testified to by many declarants.
Although the harshness of the terrain and weather on the marches to the camps may have been out of
Eritrea’s control, to force the POWs to walk barefoot in such conditions unnecessarily compounded
their misery. The Commission finds Eritrea liable for inhumane treatment during evacuations from the
battlefield as a result of its forcing Ethiopian POWs to go without footwear during evacuation marches.

d. Coercive Interrogation

75. Ethiopia alleges frequent abuse in Eritrea’s interrogation of POWs, commencing at capture and
evacuation. International law does not prohibit the interrogation of POWs, but it does restrict the
information they are obliged to reveal and prohibits torture or other measures of coercion, including
threats and “unpleasant or disadvantageous treatment of any kind.”
76. Ethiopia presented clear and convincing evidence, unrebutted by Eritrea, that Eritrean interrogators
frequently threatened or beat POWs during interrogation, particularly when they were dissatisfied with
the prisoner’s answers. The Commission must conclude that Eritrea either failed to train its
interrogators in the relevant legal restraints or to make it clear that they are imperative. Consequently,
Eritrea is liable for permitting such coercive interrogation.

e. Confiscation of Personal Property

77. Ethiopia alleges widespread and systematic confiscation by Eritrean soldiers of the personal property of
Ethiopian POWs. The declarations of Ethiopian POWs submitted into evidence clearly and convincingly
support this claim. Not only were all captured Ethiopian soldiers deprived of their shoes (presumably,
to make escape more difficult), but almost all declarants assert that they were searched upon capture
and that all of their personal possessions were taken by their captors. The items allegedly taken
included cash, watches, family photos, radios, rings and cigarettes, as well as the POWs’ identity cards
and, occasionally, items of clothing. The declarants also assert that no receipts were given and that none
of the confiscated property was returned.
78. Article 18 of Geneva Convention III requires that POWs be allowed to retain their personal property.
Cash and valuables may be impounded on order of an officer, subject to detailed registration and other
safeguards. If prisoners’ property is taken, it must be receipted and safely held for later return. Under
Article 17, identity documents can be consulted by the Detaining Power but must be returned to the
prisoner. The Commission believes that these obligations reflect customary international law.
79. No rebuttal evidence was submitted by Eritrea with respect to this claim, and the Commission notes
that Eritrea’s camp procedures for POWs state that “every POW has the duty to hand over property
which he had with him when he was captured to the concerned authority”. The Commission concludes
that Eritrea failed to take the necessary measures to prevent the confiscation of prisoners’ personal
property. Consequently, given the unrebutted evidence of widespread takings of property and Eritrea’s
camp procedures, Eritrea failed to comply with the obligations of Articles 17 and 18 of Geneva
Convention III and is liable to Ethiopia for the consequent losses suffered by Ethiopian POWs.
80. Taking of prisoners’ valuables and other property is a regrettable but recurring feature of their
vulnerable state. The loss of photographs and other similar personal items is an indignity that weighs
on prisoners’ morale, but the loss of property otherwise seems to have rarely affected the basic
requirements for prisoners’ survival and well being. Accordingly, while the Commission does not wish
 to minimize the importance of these violations, they loom less large than other matters considered
elsewhere in this Award.

Paras 82 to 150 and Award

4. Physical and Mental Abuse in POW Camps [...]

82. The testimony at the hearing of a former POW and the declarations of the other POWs are consistent
and persuasive that the Eritrean guards at the various POW camps relied often upon brutal force for the
enforcement of rules and as means of punishment. All thirty POW declarations described frequent
beatings of POWs by camp guards. Several guards accused of regularly abusing POWs were identified
by name in numerous declarations. The evidence indicates that many of the same guards remained in
charge as the numbers of POWs increased and as they were moved from one camp to another, and the
conclusion is unavoidable that guards who regularly beat POWs were not replaced as a result. Beatings
with wooden sticks were common and, on occasion, resulted in broken bones and lack of consciousness.
There were multiple, consistent accounts that, at Digdigta, several POWs who had attempted to escape
were beaten senseless, with one losing an eye, prior to their disappearance. Being forced to hold heavy
objects over one’s head for long periods of time, being punched or kicked, being required to roll on
stony or thorny ground, to look at the sun, and to undergo periods of confinement in hot metal
containers were notable among the other abuses, all of which violated customary international law, as
exemplified by Articles 13, 42, 87 and 89 of Geneva Convention III. Regrettably, the evidence also
indicates that the camp commanders did little to restrain these abuses and, in some cases, even
threatened POWs by telling them that, as there was (prior to the first ICRC visits in August 2000) no
list of prisoners, they could do anything they wanted to the POWs and could not be held accountable.
83. In addition to the fear and mental anguish that accompanied these physical abuses, there is clear
evidence that some POWs particularly Tigrayans, were treated worse than others and that several
POWs were treated as deserters and given favoured treatment. (Those given favoured treatment were
not among those who signed the thirty declarations relied on by Ethiopia on this issue.) Such
discrimination is, of course, prohibited by Article 16 of Geneva Convention III.
84. The evidence is persuasive that beatings were common at all camps: Barentu, Embakala, Digdigta,
Afabet and Nakfa. Solitary confinement of three months or more occurred at least at Digdigta and
Afabet. At Nakfa, much of the evidence of beatings and other brutal punishments relates to POWs away
from camp working on labor projects and occurred at least at Digdigta and Afabet. At Nakfa, much of
the evidence of beatings and other brutal punishments relates to POWs away from camp working on
labor projects and occurred when fatigue slowed their work. After ICRC visits began, there is some
evidence that POWs were threatened with physical punishment if they reported abuses to the ICRC. [...]

5. Unhealthy Conditions in Camps

a. The Issue

87. A fundamental principle of Geneva Convention III is that detention of POWs must not seriously
endanger the health of those POWs. This principle, which is also a principle of customary international
law, is implemented by rules that mandate camp locations where the climate is not injurious; shelter
that is adequate, with conditions as favourable as those for the forces of the Detaining Power who are
billeted in the area, including protection from dampness and adequate heat and light, bedding and
blankets; and sanitary facilities which are hygienic and are properly maintained. Food must be provided
in a quantity and quality adequate to keep POWs in good health, and safe drinking water must be
adequate. Soap and water must also be sufficient for the personal toilet and laundry of the POWs. [...]

b. Analysis of Health-Related Conditions at each of Eritrea’s POW Camps

92. While there certainly is evidence that the camp at Barentu was in violation of standards prescribed by
Geneva Convention III, it is insufficient to prove that the health of prisoners there was seriously
 endangered. This camp was in operation for no more than six weeks, and the period of internment of
most of the relatively few prisoners there was for lesser periods.
93. [...] From the evidence, it appears that all the prisoners at Embakala were housed in one small building
composed of corrugated metal sheets which was divided into two rooms and became dangerously
overcrowded soon after the camp went into operation. The floor of these quarters consisted of dirt,
which was over time converted to filthy dust as a result of the crowded living conditions and problems
of hygiene. The roof was so low that the inmates could not stand erect. The prisoners were often
confined in these quarters during the day with little opportunity to go outside, except when allowed to
relieve themselves in an adjacent field (only once each day) and to bathe (no more than once a week).
Confined in very close quarters, enduring stifling heat, often stripped to their underwear, the prisoners
were also often enjoined to keep silent for long periods of time. Throughout their stay, they were
provided with a meagre diet consisting of bread and lentil stew. There were no latrines in the field used
for toileting (once a day). Prisoners who suffered from diarrhoea were forced to relieve themselves in
the overcrowded quarters. The Commission finds this detailed evidence to be clear and convincing and
to constitute a prima facie case of serious violations at Embakala of required health-related conditions,
i.e., the provision of healthy accommodation, which seriously endangered the health of prisoners.
94. There is more abundant evidence to justify similar conclusions regarding conditions at Digdigta
(nineteen POW declarations), Afabet (twenty POW declarations), and Nakfa (thirty POW declarations).
[...]

96. Indeed, provision of adequate water for both drinking and bathing was a serious problem at all three
camps. In each, water was brought in by tanker trucks. At Digdigta, the drinking water provided during
the day (when housing conditions were stifling) was often too hot to drink in amounts adequate to
relieve thirst, as well as insufficient in quantity. At Afabet, drinking water was in short supply and
sometimes quite “salty.” At Nakfa, there were often serious water shortages because the tanker trucks
failed to appear as scheduled or failed to supply enough to meet the needs of the camp. There is also
testimony that the water secured from other sources (rain barrels and nearby “streams”) was dirty and
insect-ridden. Water for bathing was also in short supply; prisoners were allowed, at best, to bathe and
launder only once a week.
97. Virtually all of the declarants allege that, at all of these camps, the food provided consisted of inedible
(e.g., “dirty,” “worm-ridden”) bread and lentil stew. The testimony about food at Nakfa indicates that
the diet was frequently insufficient in quantity and quality and that there was often widespread hunger.
98. [...] Nakfa was chosen in May 2000 as the site for a new camp to which all prisoners should be
removed. The preparations for reception of prisoners appear to have been inadequate. There is
considerable testimony that the first group to arrive at Nakfa was put in underground, windowless,
dark, dank and dirty quarters, which were littered with human trash and the dung of donkeys and
goats, and thereafter these premises were never properly cleaned. This evidence, coupled with that
portraying the problems encountered in providing enough water for the prisoners, suggests a serious
failure to meet the basic obligation of Geneva Convention III to provide at the outset “premises...
affording every guarantee of hygiene and healthfulness.” [...]

100. Eritrea has failed to rebut the prima facie case established by Ethiopia. Eritrea’s rebuttal
depended primarily on the declarations of two senior officers who were involved in the administration
of the POW camps, who did not testify at the hearing. [...]

6. Inadequate Medical Care in Camps

104. A detaining Power has the obligation to provide in its POW camps the medical assistance on
which the POWs depend to heal their battle wounds and to prevent further damage to their health. This
duty is particularly crucial in camps with a large population and a greater risk of transmission of
contagious diseases.
105. The protections provided by Articles 15, 20, 29, 30, 31, 109 and 110 of Geneva Convention III are
unconditional. These rules, which are based on similar rules in Articles 4, 13, 14, 15 and 68 of the
Geneva Convention Relative to the Treatment of Prisoners of War of July 27, 1929, are part of
customary international law.
 106. Many of these rules are broadly phrased and do not characterize precisely the quality or extent
of medical care necessary for POWs. Article 15 speaks of the “medical attention required by their state
of health;” Article 30 requires infirmaries to provide prisoners “the attention they require” (emphasis
added). The lack of definition regarding the quality or extent of care “required” led to difficulties in
assessing this claim. Indeed, standards of medical practice vary around the world, and there may be
room for varying assessments of what is required in a specific situation. Moreover, the Commission is
mindful that it is dealing here with two countries with very limited resources.
107. Nevertheless, the Commission believes certain principles can be applied in assessing the medical
care provided to POWs. The Commission began by considering Article 15’s concept of the maintenance
of POWs, which it understands to mean that a Detaining Power must do those things required to
prevent significant deterioration of a prisoner’s health. Next, the Commission paid particular attention
to measures that are specifically required by Geneva Convention III, such as the requirements for
segregation of prisoners with infectious diseases and for regular physical examinations.

a. Ethiopia’s Claims and Evidence [...]

110. The Commission was, however, sadly impressed by the high number of Ethiopian POWs who
died in the Eritrean camps. A significant mortality rate among a group of predominantly young persons
is objectively cause for concern. The evidence, although not wholly consistent, clearly indicated an
abnormally high rate of deaths among the prisoners in Eritrean camps. In response to questioning from
the Commission, the Ethiopian POW witness testified at the hearing that, within his group of fifty-five
POWs (with whom he moved from camp to camp), four had died. Several declarations state that, of the
total population of some 1,100 Ethiopian POWs, forty-eight died. Ethiopia gave a list of fifty-one POWs
who did not survive the camps. (Eritrea estimated that thirty-nine POWs died in captivity.)
Significantly, there was substantial and reinforcing evidence that many of these deaths resulted from
diarrhoea, tuberculosis and other illnesses that could have been avoided, alleviated or cured by proper
medical care.
111. In the Commission’s view, this high death toll, combined with the other specific serious deficiencies
discussed below, is clear and convincing evidence that Eritrea did not give the totality of POWs the
basic medical care required to keep them in good health as required by Geneva Convention III, and
consequently constitutes a prima facie case. [...]

b. Eritrea’s Defence [...]

115. Eritrea’s evidence did demonstrate that many Ethiopian POWs were provided with medical
attention, primarily at the camp clinics with the services of paramedical personnel. Some POWs with
serious diseases or who required special treatment were referred on occasion to a more specialized
hospital (e.g., Keren, Afabet, Ghindu, Nakfa). There was evidence that Eritrea provided for dental care
either in hospitals or in the camp clinic by having dentists visit. Likewise, there was evidence that
Eritrea gave a few POWs extensive medical treatment, including multiple surgical interventions. It
occasionally provided drugs and vitamins beyond such few drugs and pain relievers as were available at
the clinics.

c. The Commission’s Conclusions

116. Overall, while the Commission is satisfied from the evidence that Eritrea made efforts to provide
medical care and that some care was available at each permanent camp, Eritrea’s evidence is
inadequate to allow the Commission to form judgements regarding the extent or quality of Health care
sufficient to overcome Ethiopia’s prima facie case.
117.The camp clinic logs (where readable) do show that numerous POWs went to the clinics, but they
cannot establish that care was appropriate or that all POWs in need of medical attention were treated in
a timely manner over the full course of their captivity. For example, from the records it appears that the
clinics did not register patients on a daily basis. Under international humanitarian law, a POW has the
 right to seek medical attention on his or her own initiative and to receive the continuous medical
attention required by his or her state of health – which requires daily access to a clinic.
118. International humanitarian law also requires that POWs be treated at a specialized hospital or
facility when required medical care cannot be given in a camp clinic. The hospital records submitted by
Eritrea, however, are not sufficient to establish that all POWs in need of specialized treatment were
referred to hospitals. Moreover, a quantitative analysis of those records shows that, while a few relate to
treatment in the first half of 1999 at Digdigta, nearly one half relate to the period from August to
December 2000 and one quarter to 2001 and 2002, i.e., the time period after Eritrea acceded to the
Geneva Conventions and ICRC camp visits started. Only a few records relate to treatment between July
1999 and May 2000, when POWs were detained at Afabet, and none relates to the time when Barentu
and Embakala were open.
119. Likewise, the medicine supply reports submitted by Eritrea indicate that Eritrea distributed
some drugs and vitamins to the POWs, but they do not prove that Eritrea provided adequate drugs to all
POWs in the camps. It is striking that, according to the evidence submitted, Eritrea apparently
distributed substantially more Vitamin A, B and C and multi-vitamins to POWs after August 2000 than
before.
120. Preventive care is a matter of particular concern to the Commission. As evidenced by their
prominence in Geneva Convention III, regular medical examinations of all POWs are vital to
maintaining good health in a closed environment where diseases are easily spread. The Commission
considers monthly examinations of the camp population to be a preventive measure forming part of the
Detaining Power’s obligations under international customary law. [...]

123. The evidence also reflects that Eritrea failed to segregate certain infected prisoners. POWs are
particularly susceptible to contagious diseases such as tuberculosis, and customary international law
(reflecting proper basic health care) requires that infected POWs be isolated from the general POW
population. Several Ethiopian POW declarants describe how tuberculosis patients were lodged with the
other POW’s, evidence which was not effectively rebutted by Eritrea. The camp authorities should have
detected contagious diseases as early as possible and organized special wards.
124. Accordingly, the Commission holds that Eritrea violated international law from May 1998 until
the last Ethiopian POWs were released and repatriated in August 2002, by failing to provide Ethiopian
POWs with the required minimum standard of medical care. Consequently, Eritrea is liable for this
violation of customary international law.
125. In closing, the Commission notes its recognition that Eritrea and Ethiopia cannot, at least at
present, be required to have the same standards for medical treatment as developed countries.
However, scarcity of finances and infrastructure cannot excuse a failure to grant the minimum standard
of medical care required by international humanitarian law. The cost of such care is not, in any event,
substantial in comparison with the other costs imposed by the armed conflict.

7. Unlawful Conditions of Labour

126. Ethiopia claims that Eritrea forced POWs to work in conditions that violated requirements of
Articles 13, 14, 26, 27, 49-55, 62, 65 and 66 of Geneva Convention III.
127. Article 49 of Geneva Convention III does not forbid a Detaining Power to compel POWs who are
physically fit to work, but it does forbid compelling officers to work. The declarations by former
Ethiopian POWs make clear that, while the most seriously disabled were generally excused from work,
other sick or wounded POWs who were not physically fit were not excused and were generally forced to
work and that officers were forced to work. [...]

133. Finally, Ethiopia asserted that Eritrea required its POWs to perform work of a military character
in breach of Article 50 of Geneva Convention III. However, no sufficient evidence has been submitted
for this allegation. To build residence houses and other facilities for the camp and the guards is not
work of a military character, but concerns the installation of the camp, and is allowed under Article 50.
Similarly, under Article 50, roads are considered works of public utility and therefore work on them is
permissible, unless it is proven that they have a military character or purpose. Ethiopia did not submit
such evidence. Consequently, the Commission does not find that Eritrea breached Article 50 of Geneva
Convention III.
 134. In conclusion, the Commission holds that Eritrea has subjected Ethiopian POWs to conditions
of labour that violated Articles 13, 27, 49, 51, 53, 54 and 62 of Geneva Convention III. Consequently,
Eritrea is liable for these unlawful labour conditions.

8. Conditions of Transfer Between Camps

135. The Commission turns next to Ethiopia’s allegations that Eritrea treated POWs inhumanely in
the course of transfer between camps. As recited by Ethiopia, Articles 46 and 47 of Geneva Convention
III require the Detaining Power to conduct transfers humanely. At a minimum, as with evacuation from
the front, the Detaining Power should not subject POWs to transfer conditions less favourable than
those to which its own forces are subjected. In all circumstances, the Detaining Power must consider
the interests of the prisoners so as not to make repatriation more difficult than necessary, and should
provide food, water, shelter and medical attention. The sick and wounded should not be transferred if it
endangers their recovery, unless mandated by safety reasons.
136. The Ethiopian POW declarations consistently recount hours and days of travel on overcrowded
military trucks or buses, over rough roads, in extremes of heat and cold, with few if any toilet breaks
and little if any food and water. In rebuttal, Eritrea presented evidence that its own forces, at least to
some extent, endured these same difficult transportation conditions, particularly given the lack of paved
roads in Eritrea. The Commissioned recognizes that drastically limited Eritrean resources and
infrastructure made transfer of prisoners in this conflict unavoidably miserable, but, again, only to
some extent.
137. However, the evidence also reflects that, to a certain and critical extent, Eritrea did not do all
within its ability to make transfer of the POWs as humane as possible. The evidence indicates that
transfers were often accompanied by deliberate physical abuse by guards, and that Eritrea provided no
effective measures to prevent such misconduct. The Commission is troubled by accounts, fortunately
few, of purposefully cruel treatment: one declaration describes Eritrean soldiers pouring fuel on the bed
of transport truck before a twelve-hour trip in open sun. Of even greater concern is the clear and
convincing evidence presented by Ethiopia that Eritrean soldiers frequently beat POWs during transfer.
Particularly serious is repetitive evidence of Eritrean soldiers beating the sick and wounded. In one
case, two declarations recounted the death of one sick Ethiopian prisoner who was thrown from a truck
on the transfer from Afabet to Nakfa and left to die.
138. In the absence of effective rebuttal by Eritrea, the Commission finds Eritrea liable for permitting
unnecessary suffering of POWs during transfer between camps.

9. Treatment of the Dead

139. Ethiopia, unlike Eritrea, brought separate claims for alleged violations of customary
international law requirements following the death of a POW. Specifically citing Articles 120 and 121 of
Geneva Convention III, Ethiopia alleged that Eritrea failed to provide medical examination and death
certificates for POWs who died in captivity, to investigate potential non-natural causes of death, or to
ensure honourable burial with religious rites in marked graves. [...]

10. Failure to Post Camp Rules and Allow Complaints

142. As noted previously, Geneva Convention III establishes an extremely detailed regime. Earlier
sections of this Award address Ethiopia’s claims alleging violations of core elements of this regime
involving killings, physical or mental abuse of POWs, or matters vital to POWs’ survival, such as food,
housing and medical care.
143. This final section addresses Ethiopia’s claims involving two sets of obligations of a somewhat
different character. Ethiopia claims violations of requirements to (a) post camp regulations and (b)
have complaint procedures. These provisions establish administrative or procedural requirements
partly aimed at protecting POWs’ rights or at remedying deficiencies. The Commission does not mean
to minimize their role in the total scheme of protection under the Convention. Nevertheless, these
claims loom less large than many others considered previously.
a. Camp Regulations

144. Article 41 of Geneva Convention III requires every POW camp to post both the Convention and
“regulations, orders, notices and publications of every kind,” where prisoners may read them in the
prisoners’ language. Prior to August 14, 2000, the Geneva Convention was not in force between the
Parties; the Commission sees no basis to hold that customary law requires the posting of the
Convention before that date. However, the Commission finds that there is a customary obligation to
post camp regulations in a clear and accessible location and otherwise to ensure that POWs are aware of
their rights and obligations. [...]

b. Complaint Procedures

147. Ethiopia also claimed that Eritrea did not provide effective complaint procedures. Article 78 of
Geneva Convention III assures POWs the right to “make known” to the military authorities holding
them “requests” regarding their conditions. Requests and complaints cannot be limited, cannot be
punished, and must be transmitted immediately.
148. Taking account, for instance, of the practice during World War I cited by Ethiopia and the
inclusion of this concept in the 1929 Convention, the Commission finds that both customary law and
the Convention guarantee POWs right to complain about their conditions of detention free from
retribution. Ethiopia’s evidence, although not as extensive as on some other more fundamental issues,
establishes that this right frequently was not allowed and that complaining prisoners were subjected to
severe punishments. [...]

150. Based on clear and convincing evidence, the Commission finds that Eritrea, in violation of its
obligations under international law, did not allow Ethiopian POWs held at any of its camps to complain
about their conditions and to seek redress. Further, the evidence shows that in all of the camps, but
particularly in Nakfa, prisoners who attempted to complain were often subjected to heavy and unlawful
sanctions, including segregation from the rest of the camp population and beatings by guards.
Consequently, Eritrea is liable for these violations.

V. AWARD
In view of the foregoing, the Commission determines as follows: [...]

B. Applicable Law

1. With respect to matters prior to Eritrea’s accession to the Geneva Conventions of 1949, effective August
14, 2000, the international law applicable to this claim is customary international law, including
customary international humanitarian law as exemplified by the relevant parts of the four Geneva
Conventions of 1949.
2. Whenever either Party asserts that a particular relevant provision of those Conventions was not part of
customary international law at the relevant time, the burden of proof will be on the asserting Party.
3. With respect to matters subsequent to August 14, 2000, the international law applicable to this claim is
the relevant parts of the four Geneva Conventions of 1949, as well as customary international law. [...]

D. Findings of Liability for Violation of International Law

The respondent is liable to the Claimant for the following violations of international law committed by its
military personnel and by other officials of the State of Eritrea:
 1. For refusing permission, from May 1998 until August 2000, for the ICRC to send delegates to visit all
places where Ethiopian POWs were detained, to register those POWs, to interview them without
witnesses, and to provide them with relief and services customarily provided;
2. For failing to protect Ethiopian POWs from being killed at capture or its immediate aftermath;
3. For permitting beatings or other physical abuse of Ethiopian POWs, which occurred frequently at
capture or its immediate aftermath;
4. For depriving all Ethiopian POWs of footwear during long walks from the place of capture to the first
place of detention;
5. For permitting its personnel to threaten and beat Ethiopian POWs during interrogations, which
occurred frequently at capture or its immediate aftermath;
6. For the general confiscation of the personal property of Ethiopian POWs;
7. For permitting pervasive and continuous physical and mental abuse of Ethiopian POWs in its camps
from May 1998 until August 2002;
8. For seriously endangering the health of Ethiopian POWs at the Embakala, Digdigta, Afabet and Nakfa
camps by failing to provide adequate housing, sanitation, drinking water, bathing opportunities and
food;
9. For failing to provide the standard of medical care required for Ethiopian POWs, and for failing to
provide required preventive care by segregating prisoners with infectious diseases and conducting
regular physical examinations, from May 1998 until August 2002;
10. For subjecting Ethiopian POWs to unlawful conditions of labor;
11. For permitting unnecessary suffering of POWs during transfer between camps; and
12. For failing to allow the Ethiopian POW in its camps to complain about their conditions and to seek
redress, and frequently punishing POWs who attempted to complain.

B. Prisoners of War, Eritrea’s Claim 17 - paras 1 to 114

[Source: Eritrea-Ethiopia Claims Commission, Partial Award, Prisoners of War, Eritrea’s Claim 17 between
the State of Eritrea and the Federal Democratic Republic of Ethiopia. The Hague, July 1, 2003. The Permanent
Court of Arbitration, The Hague. Footnotes omitted. Full Awards available on http://www.pca-
cpa.org/showpage.asp?pag_id=1151]

ERITREA ETHIOPIA CLAIMS COMMISSION

PARTIAL AWARD
Prisoners of War
Eritrea’s Claim 17
between
The State of Eritrea
and The Federal Democratic Republic of Ethiopia
The Hague, July 1, 2003

I. INTRODUCTION

A. Summary of the Positions of the Parties

1. This Claim (“Eritrea’s Claim 17”; “ERI 17”) has been brought to the Commission by the Claimant, the
State of Eritrea (“Eritrea”), pursuant to Article 5 of the Agreement between the Government of the
Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea of December 12,
2000 (“the Agreement”). The Claim seeks a finding of the liability of the Respondent, the Federal
Democratic Republic of Ethiopia (“Ethiopia”), for loss, damage and injury suffered by the Claimant as a
result of the Respondent’s alleged unlawful treatment of its Prisoners of War (“POWs”) who were
nationals of the Claimant. In its Statement of Claim, the Claimant requested monetary compensation,
costs, and such other relief as is just and proper. In its Memorial, the Claimant requests additional relief
in the form of order: (a) that the Respondent cooperate with the International Committee of the Red
Cross (“ICRC”) in effecting an immediate release of all remaining POWs it holds; (b) that the
Respondent return personal property of POWs confiscated by it; and (c) that the Respondent desist
from displaying information and photographs of POWs to public view.
 2. The Respondent asserts that it fully complied with international law in its treatment of POWs. The
Respondent denies that the Commission has jurisdiction over claims relating to the repatriation of
POWs and over several claims that it alleges were not filed by December 12, 2001, and consequently
were extinguished by virtue of Article 5, paragraph 8, of the Agreement. The Respondent also objects to
the Claimant’s requests for the additional relief in the form of orders as inappropriate and unnecessary
and, with respect to repatriation, as beyond the power of the Commission.

B. Ethiopian POW Camps

3. Ethiopia interned a total of approximately 2,600 Eritrean POWs between the start of the conflict in May
1998 and November 29, 2002, when all remaining Eritrean POWs registered by the ICRC were
released.
4. Ethiopia utilized six permanent camps, some only briefly: Fiche, Bilate, Feres Mai, Mai Chew, Mai
Kenetal and Dedessa. Ethiopia closed each camp upon transfer of the POWs to their next camp.

[...]

C. General Comment by the Commission

11. As the findings in this Award and in the related Award in Ethiopia’s Claim 4 describe, there were
significant difficulties in both Parties’ performance of important legal obligations for the protection of
POWs. Nevertheless, the Commission must record an important preliminary point that provides
essential context for what follows. Based on the extensive evidence adduced during these proceedings,
the Commission believes that both Parties had a commitment for the most fundamental principles
bearing on prisoners of war. Both Parties conducted organized, official training programs to instruct
their troops on procedures to be followed when POWs are taken. In contrast to many other
contemporary armed conflicts, both Eritrea and Ethiopia regularly and consistently took POWs. Enemy
personnel who were hors de combat were moved away from the battlefield to conditions of greater
safety. Further, although these cases involve two of the poorest countries in the world, both made
significant efforts to provide for the sustenance and care of the POWs in their custody.
12. There were deficiencies of performance on both sides, sometimes significant, occasionally grave.
Nevertheless, the evidence in these cases shows that both Eritrea and Ethiopia endeavored to observe
their fundamental humanitarian obligations to collect and protect enemy soldiers unable to resist on
the battlefield. The Awards in these cases, and the difficulties that they identify, must be read against
this background. [...]

III. JURISDICTION

A. Jurisdiction over Claims Arising Subsequent to December 12, 2000 [...]

20. It is beyond dispute that all the persons who are the subject of the present claims became POWs during
the armed conflict that ended with the conclusion of the Agreement on December 12, 2000. The
Commission believes that the timely release and repatriation of POWs is clearly among the types of
measures associated with disengaging contending forces and ending the military confrontation between
the two Parties that fall within the scope of its Decision No. 1. In that connection, international law and
practice recognize the importance of the timely release and return of POWs, as demonstrated by Article
118 of Geneva Convention III which requires that such POWs “be released and repatriated without
delay following the cessation of active hostilities.” [...]

22. The Commission finds unconvincing Ethiopia’s further arguments that Article 2 of the Agreement
effectively replaced Article 118 of Geneva Convention III as the governing law and that the Commission
could not exercise jurisdiction over Eritrea’s claim based on Article 118 without thereby deciding
whether Ethiopia was in breach of its obligations under Article 2 of the Agreement. It frequently occurs
in international law that a party finds itself subject to cumulative obligations arising independently
from multiple sources. Article 2 itself recognizes that the relevant repatriation obligations are
 obligations “under international humanitarian law, including the 1949 Geneva Conventions....” Article 5
of the Agreement grants the Commission jurisdiction over all claims related to the conflict that result
from violations of the 1949 Geneva Conventions or from other violations of international law. The
Commission finds no basis in the text of either Article 2 or Article 5 for the conclusion that its
jurisdiction over claims covered by Article 5 is repealed or impaired by the provisions of Article 2.
Consequently, the Commission finds that it has jurisdiction over Eritrea’s claims concerning the
repatriation of POWs. Nevertheless, in dealing with those claims, the Commission shall exercise care to
avoid assuming or exercising jurisdiction over any claims concerning compliance with Article 2 of the
Agreement.

IV. THE MERITS

A. Applicable Law [...]

41. Consequently, the Commission holds that the law applicable to this Claim is customary international
law, including customary international humanitarian law, as exemplified by the relevant parts of the
four Geneva Conventions of 1949.The frequent invocation of provisions of Geneva Convention III by
both Parties in support of their claims and defences is fully consistent with this holding. Whenever
either Party asserts that a particular relevant provision of those Conventions should not be considered
part of customary international law at the relevant time, the Commission will decide that question, and
the burden of proof will be on the asserting Party. [...]

C. Violations of the Law [...]

2. Mistreatment of POWs at Capture and its Immediate Aftermath [...]

a. Abusive Treatment

59. The forty-eight Eritrean POW declarations recount a few disquieting instances of Ethiopian soldiers
deliberately killing POWs following capture. Three declarants gave eyewitness accounts alleging that
wounded comrades were shot and abandoned to speed up evacuation.
60. The Commission received no evidence that Ethiopian authorities conducted inquiries into any such
battlefield events or pursued discipline as required under Article 121 of Geneva Convention III.
However, several Eritrean POW declarants described occasions when Ethiopian soldiers threatened to
kill Eritrean POWs at the front or during evacuation, but either restrained themselves or were stopped
by their comrades. Ethiopia presented substantial evidence regarding the international humanitarian
law training given to its troops. The accounts of capture and its immediate aftermath presented to the
Commission in this Claim suggest that this training generally was effective in preventing unlawful
killing, even “in the heat of the moment” after capture and surrender.
61. On balance, and without in any way condoning isolated incidents of unlawful killing by Ethiopian
soldiers, the Commission finds that there is not sufficient corroborated evidence to find Ethiopia liable
for frequent or recurring killing of Eritrean POWs at capture or its aftermath.
62. In contrast, Eritrea did present clear and convincing evidence, in the form of cumulative and
reinforcing accounts in the Eritrean POW declarations, of frequent physical abuse of Eritrean POWs by
their captors both at the front and during evacuation. A significant number of the declarants reported
that Ethiopian troops threatened and beat Eritrean prisoners, sometimes brutally and sometimes
inflicting blows directly to wounds. In some cases, Ethiopian soldiers deliberately subjected Eritrean
POWs to verbal and physical abuse, including beating and stoning from civilian crowds in the course of
transit.
63. This evidence of frequent beatings and other unlawful physical abuse of Eritrean POWs at capture or
shortly after capture is clear, convincing and essentially unrebutted. Although the Commission has no
evidence that Ethiopia encouraged its soldiers to abuse POWs at capture, the conclusion is unavoidable
that, at a minimum, Ethiopia failed to take effective measures, as required by international law, to
prevent such abuse. Consequently, Ethiopia is liable for that failure.
b. Medical Care Immediately After Capture

64. The Commission turns next to Eritrea’s allegations that Ethiopia failed to provide necessary medical
attention to Eritrean POWs after capture and during evacuation, as required under customary law as
reflected in Geneva Conventions I (Article 12) and III (Articles 20 and 15). Some fourteen of the
Eritrean declarants testified that their wounds or their comrades’ wounds were not bandaged at the
front or cleaned in the first days and weeks after capture, in at least one case apparently leading to
death after a transit journey. In rebuttal, Ethiopia offered evidence that its soldiers carried bandages
and had been trained to wrap wounds to stop bleeding, but not to wash wounds immediately at the
front because of the scarcity of both water and time.
65. The Commission believes that the requirement to provide POWs with medical care during the initial
period after capture must be assessed in light of the harsh conditions on the battlefield and the limited
extent of medical training and equipment available to front line troops. On balance, and recognizing the
logistical and resource limitations on the medical care Ethiopia could provide at the front, the evidence
indicates that, on the whole, Ethiopian forces gave wounded Eritrean soldiers basic first aid treatment
upon capture. Hence, Ethiopia is not liable for this alleged violation.

c. Evacuation Conditions [...]

68. On balance, and with one exception, the Commission finds that Ethiopian troops satisfied the legal
requirements for evacuations from the battlefield under the harsh geographic, military and logistical
circumstances. The exception is the frequent, but not invariable, Ethiopian practice of seizing footwear,
testified to by several declarants. Although the harshness of the terrain and weather on the marches to
the camps may have been out of Ethiopia’s control, to force the POWs to walk barefoot in such
conditions unnecessarily compounded their misery. Although Ethiopia suggested, in the context of
transit camps, that it is permissible to restrict shoes to prevent escape, the ICRC Commentary is to the
contrary, and Ethiopia has claimed against Eritrea for the same offense. The Commission finds Ethiopia
liable for inhumane treatment during evacuations from the battlefield as a result of its forcing Eritrean
POWs to go without footwear during evacuation marches. [...]

d. Coercive Interrogation

70. Eritrea alleges frequent abuse in Ethiopia’s interrogation of POWs, commencing at capture and
evacuation. International law does not prohibit the interrogation of POWs, but it does restrict the
information they are obliged to reveal and prohibits torture or other measures of coercion, including
threats and “unpleasant or disadvantageous treatment of any kind.”
71. However, only a very small number of Eritrean declarants testified that they were beaten or seriously
threatened during interrogation. Without condoning any isolated incidents of abuse, the Commission
finds that the evidence was insufficient to show a pattern of coercive interrogation of POWs at capture
or thereafter.

3. Taking of the Personal Property of POWs

72. Eritrea alleges widespread confiscation by Ethiopian soldiers of POWs’ money and other valuables, and
of photographs and identity cards, either at the time of capture or thereafter. Eritrea accordingly asked
the Commission to “order the return of all irreplaceable personal property to Eritrean POWs that was
confiscated by Ethiopia ..., and in particular that Ethiopia return identity documents and personal
photographs displayed on the Internet.” [...]

76. Weighing the conflicting evidence, the Commission finds that it shows that personal property
frequently was taken from Eritrean prisoners by Ethiopian military personnel, without receipts or any
hope of return, all contrary to Articles 17 and 18 of Geneva Convention III. Sometimes this occurred at
the front soon after capture, where such thefts have been all too common during war as the
 independent actions of rapacious individuals. However, the Commission is troubled by evidence of
taking of personal property at transit facilities and after arrival at permanent camps and by evidence
that property for which receipts were given was not returned or was partly or fully “lost.” The conflicting
evidence obviously cannot be fully reconciled.
77. The Commission concludes that Ethiopia made efforts to protect the rights of POWs to their personal
property, but that these efforts fell short in practice of what was necessary to ensure compliance with
the relevant requirements of Geneva Convention III. Consequently, Ethiopia is liable to Eritrea for the
resulting losses suffered by Eritrean POWs. [...]

4. Physical and Mental abuse of POWs in Camps [...]

81. Even if one were to give full credibility to the evidence submitted by Eritrea, the evidence as a whole
indicates that the Ethiopian POW camps were not characterized by a high level of physical abuse by the
guards. The evidence does suggest that there were some incidents of beating and that disciplinary
punishments were sometimes imposed contrary to Article 96 of Geneva Convention III in that they
were decided by Ethiopian guards, rather than by camp commanders or officers to whom appropriate
authority had been delegated or that the accused had been denied the benefit of the rights granted by
that Article. The disciplinary punishments themselves appear to have been a mixture of clearly
legitimate punishments, such as solitary confinement of less than one month and fatigue duties, such as
digging, unloading cargo at the camp or carrying water to the camp, along with punishments of
questionable legality, such as running, crawling and rolling on the ground. Moreover, there are
allegations that some penalties, such as running, crawling or rolling on the ground in the hot sun, even
if they could properly be considered fatigue duties, which seem doubtful, were painful and exceeded the
limits permitted by Article 89 of Geneva Convention III. That Article permits fatigue duties not
exceeding two hours daily as disciplinary punishments of POWs other than officers, but fatigue duties,
as well as the other authorized punishments, become unlawful if they are “inhuman, brutal or
dangerous to the health” of the POWs. The Commission lacks sufficient evidence to determine whether
the punishments actually imposed upon Eritrean POWs violated that standard. [...]
82. [...] Considering all relevant evidence, the Commission holds that the Claimant has failed to prove by
clear and convincing evidence that Ethiopia’s POW camps, despite the likely inconsistencies, noted
above, with the requirements of Articles 89 and 96 of the Convention, were administered in such a way
as to give rise to liability for frequent or pervasive physical abuse of POWs. [...]

84. Regrettably, the Commission’s finding regarding physical abuse does not apply as well to mental abuse.
Ethiopia admits that its camps were organized in a manner that resulted in the segregation of various
groups of POWs from each other. It is acknowledged that POWs who had been in the armed forces
during the much earlier fighting against the Derg were kept isolated from POWs who began their
military service later, and there is some evidence that other groups were also segregated depending
upon the years in which the POWs began their military service. Such segregation is contrary to Article
22 of Geneva Convention III, which states that “prisoners shall not be separated from prisoners of war
belonging to the armed forces with which they were serving at the time of their capture, except with
their consent.” Ethiopia argues that this segregation was done to reduce hostility between the groups,
but the Commission finds that argument unpersuasive. It seems far more likely that these actions were
taken to promote defections of POWs and to break down any sense of internal discipline and cohesion
among the POWs.
85. In that connection, the Commission notes that Ethiopia conducted extensive indoctrination programs
for the various groups of POWs in Bilate, Mai Chew, Mai Kenetal and Dedessa and encouraged the
discussion among groups of POWs of questions raised in these programs, including the responsibility
for starting the war and the nature of the Eritrean Government. While Ethiopia asserts that attendance
at these indoctrination and discussion sessions was not compulsory, there is considerable evidence that,
except for sick or wounded POWs, attendance was effectively made compulsory by Ethiopia, contrary to
Article 38 of Geneva Convention III. Moreover, there is substantial evidence that POWs were
sometimes put under considerable pressure to engage in self-criticism during the discussion sessions.
While there are some allegations that those POWs who made statements that appealed to the Ethiopian
authorities were subsequently accorded more favorable treatment than those who refused to make such
statements, the Commission does not find sufficient evidence to prove such a violation of the
 fundamental requirement of Article 16 of Geneva Convention III that all POWs must be treated alike,
“without any adverse distinction based on race, nationality, religious belief or political opinions, or any
other distinction founded on similar criteria.” Nevertheless, the Commission notes with concern the
evidence of mental and emotional distress felt by many Eritrean POWs and concludes that such distress
was caused in substantial part by these actions by Ethiopia in violation of Articles 22 and 38 of the
Convention.

86. Consequently, Ethiopia is liable for the mental and emotional distress caused to Eritrean POWs who
were subjected to programs of enforced indoctrination from the date of the first indoctrination sessions
at the Bilate camp in July 1998 until the release and repatriation of the last POWs in November 2002.
The evidence indicates that this group includes essentially all of the POWs held by Ethiopia at the four
named camps, except for those unable to attend the indoctrination sessions due to their medical
conditions.

5. Unhealthy Conditions in Camps [...]

c. Analysis of Health-Related Conditions at Each of Ethiopia’s POW Camps

92. While there is certainly some disturbing testimony to support Eritrea’s claim that Ethiopia’s northern,
short term POW camps at Feres Mai and Mai Chew were in serious violation of one or more basic health
standards, the Commission finds the evidence relating to these camps insufficient to justify a finding
that conditions there seriously endangered the health of POWs.
93. Mai Kenetal presents a different picture. Its commander testified in writing that the site for the camp
was selected because it was close to an arterial road linking the camp to Mekele and Addis Ababa to the
south, and because the location included a number of administrative buildings which had been vacated
by the Mai Kenetal wereda government. Despite these advantages, two circumstances combined to
impose great difficulties on the camp’s administrators: first, Mai Kenetal was put into operation at the
onset of the winter season in Northern Ethiopia – a three-month period characterized, at times, by
torrential rains, high winds and cold temperatures; second, in May 2000, Ethiopia launched a major
offensive which produced, quite rapidly, an unanticipated camp population of around 2,000 POWs – a
development which strained the resources of the camp during difficult climatic conditions. [...]

95. Nearly all POWs who were not wounded were housed in tents, of varying size, made up of plastic
sheeting propped up by wooden poles. It is undisputed that there was no flooring; that prisoners slept
on the damp ground; that prisoners were provided with only one or two blankets; that the plastic tents
were inadequate to keep out the rain; that some tents blew down in the high winds; that during much of
the time these quarters were quite cold and damp and even muddy; and, that they were seriously
overcrowded. [...]

97. At least twenty POWs testified regarding unsanitary toilet conditions. These facilities consisted of holes
dug in the ground and covered by sheets of wood with holes cut into them, and sheltered from the rains
by plastic tenting. The holes regularly became filled with rain water and mud, and there is also
cumulative testimony that the ground under many of the toilet tents became muddy and contaminated
and that these conditions exacerbated the hardships suffered by those POWs who lacked shoes. At least
ten POWs testified that flooded toilets affected their conditions of shelter. [...]

99. There is little dispute about the content of the diet offered at Mai Kenetal. It consisted of bread and tea
in the morning and bread and lentils for lunch and dinner. Overwhelmingly, the thirty-eight POWs who
testified about conditions at Mai Kenetal complained about the inadequacy of this diet. Many say they
were in a state of constant hunger. Many assert this diet produced serious malnutrition, which,
combined with other conditions, facilitated contagious diseases, notably tuberculosis. Nearly all of the
thirty- eight POWs also claim that the medical facilities provided were inadequate in terms of qualified
personnel, medical supplies and other resources necessary to treat the many sick or wounded POWs at
Mai Kenetal. While complaints regarding food and medical care were regularly levelled at the
administration of all camps by POWs from both sides, it does appear from considerable cumulative
 testimony that there was serious hunger and sickness at Mai Kenetal. For example, at least twenty
POWs claimed that they suffered from diarrhea. Many others complained that tuberculosis became
widespread and that POWs suffering from this disease were housed in the overcrowded tents rather
than isolated in facilities set up for medical care of that disease.
100. Ethiopia made extensive efforts to discredit and rebut this evidence, [...]. [...] They testified that
clothing in the form of coveralls, as well as shoes and a mat and two blankets, were issued to each POW.
They assert that drinking water was at first piped from the wells at Mai Kenetal village into the camp,
but then the new wells were dug at the camp, and that the water from these wells – despite some
complaints by POWs – was chlorinated, potable and plentiful. They also assert that showers were
available for bathing. Each of these officers further stated that ICRC teams regularly visited the camps
and made no serious complaints about its conditions. The Commission notes that this is a specific
instance where access to the relevant ICRC reports would have been very helpful.
101. It is clear that these officers were aware of their duties, and the Commission may assume they
did their best to maintain the health of the POWs under difficult circumstances. Much of their
testimony can be credited if one assumes, as the evidence justifies, that the steps taken to improve the
conditions of the POWs came towards the end of the relatively brief period in which the camp was in
operation. But the cumulative, reinforcing, detailed testimony of so many POWs persuades the
Commission that, despite the efforts of the camp’s staff, a combination of serious, sub-standard health
conditions did exist at Mai Kenetal for some time, that these conditions seriously and adversely affected
the health of some POWs there and endangered the health of others, and that this situation constituted
a violation of customary international law. [...]

105. Nearly all of the Eritrean prisoners were ultimately interned at Dedessa. This camp had
originally been constructed during the Derg era as a military training base. It was put into operation as
a POW camp in June 1999 and remained so until all prisoners were finally repatriated in November
2002. There are thirty-eight declarations describing health-related conditions at this camp. While some
allege serious deficiencies regarding sanitation, shelter and lack of shoes, these complaints are
contradicted or mitigated by the testimony of others. Weighing the evidence, the Commission finds
insufficient evidence to support a finding that the camp was in serious violation of health-related
standards. Evidence regarding the food provided at Dedessa is discussed in the context of Eritrea’s
general claim regarding the insufficiency of the diet provided to prisoners during their entire captivity.

d. Eritrea’s General Claim Regarding the Insufficiency of the Food Provided to Eritrean
POWs During the Entire Period of their Captivity

106. In its Statement of Claim and Memorial, Eritrea appears to claim that, throughout their
captivity, Eritrean POWs were provided food which was insufficient in “quantity, quality, and variety to
keep them in good health and prevent loss of weight.” This claim does not require a finding that the
food provided by every internment camp was so inadequate in quantity or quality and variety that the
health of POWs in each camp was endangered. Rather, the task of the Commission is to determine
whether there is clear and convincing evidence that the food provided at all camps was such that, over
time, the health of some POWs came to be seriously endangered because of an insufficiency of food in
quantity, quality or variety. [...]

114. In conclusion, the Commission holds, first, that the health standards at the POW camp at Mai
Kenetal seriously and adversely affected the health of a number of the POWs there and endangered the
health of others in violation of applicable international humanitarian law; and second, that the food
provided by Ethiopia to POWs at all camps prior to December 2000 was sufficiently deficient in needed
nutrition, over time, as to endanger seriously the health of Eritrean POWs in violation of applicable
international humanitarian law. Consequently, Ethiopia is liable for the unlawful health standards at
Mai Kenetal and, prior to December 2000, for providing food so inadequate in nutrition that, over time,
it seriously endangered the health of all Eritrean POWs.

Paras 128 to 163 and Award

6. Inadequate Medical Care in Camps [...]
c. The Commission’s Conclusions

128. Despite the substantial amount of evidence and hearing time devoted to medical care in
Eritrea’s claim, the Commission had difficulty in determining the availability and quality of medical
care in the Ethiopian POW camps. Focusing on specifics did not prove necessarily helpful. For example,
the evidence of psychological/psychiatric problems does not prove that Ethiopia failed to provide
appropriate care; lengthy captivity can be psychologically very disturbing, and psychological care after
repatriation is frequently indicated. The discussion of sympathetic ophthalmia was clearly very narrow.
The hospital records submitted by Ethiopia do not establish that all POWs in need of specialized
treatment were, in fact, referred to hospitals, but only that some were. Although a few Eritrean
declarants complained about insufficient medical staffing, other evidence showed that camp infirmaries
were staffed by one or more medical doctors and paramedics; a detained Eritrean doctor was involved
in caring for the Eritrean POWs. [...]

130. First, in response to questioning, Ethiopia indicated that, to the best of its knowledge, twenty
Eritrean POWs died while in captivity in Ethiopia. The Eritrean POW declarants frequently allege,
especially with regard to Mai Kenetal (the seriously inadequate conditions of which the Commission
discusses above), that deaths resulted from lack of medical attention. As regrettable as each and every
death is, the Commission finds that a death ratio of less than one percent – in a total population of
some 2,600 POWs, many seriously wounded – does not in itself indicate substandard medical care.
131. Second, the Commission was struck by the detailed testimony of the Eritrean doctors who
examined the Eritrean POWs repatriated after hostilities ended in December 2000. They were of the
firm opinion that these wounded and sick POWs could not have received required medical care. They
testified that, of the 359 POWs they examined, twenty-two had tuberculosis – a very high ratio. They
also testified that the POWs showed signs of malnutrition, which had adversely affected their health,
contributed to the development of tuberculosis and scurvy, and left many unready for necessary surgery
until they could put on weight. The doctors also found that nearly one-half of the POWs they examined
had fractures that had not been properly treated, evidenced by non-union or mal-union of the bones.
Although Ethiopia responded that fractures sometimes could not heal properly for reasons beyond its
control, for example, because of unavoidable delays in evacuation, the Eritrean doctors countered that
many of the post-repatriation orthopedic operations have been successful; if those operations had been
done earlier, while the patients were in Ethiopia’s custody, they could have been even more successful.
132. Finally, preventive care is a matter of particular concern to the Commission. As evidenced by
their prominence in Geneva Convention III, regular medical examinations of all POWs are vital to
maintaining good health in a closed environment where diseases are easily spread. The Commission
considers monthly examinations of the camp population to be a preventive measure forming part of the
Detaining Power’s obligations under international customary law.
133. The Commission must conclude that Ethiopia failed to take several important preventive care
measures specifically mandated by international law. In assessing this issue, the Commission looked
not just to Eritrea but also to Ethiopia, which administered the camps and had the best knowledge of its
own practices. [...]

136. In conclusion, on the basis of clear and convincing evidence, including the essentially
unrebutted evidence of the prevalence of malnutrition, tuberculosis and improperly treated fractures
and the absence of required preventive care, the Commission finds that Ethiopia failed to provide
Eritrean POWs with the required minimum standard of medical care prior to December 2000.
Consequently, Ethiopia is liable for this violation of customary international law.
137. In comparison, Eritrea has failed to prove that the medical care provided to Eritrean POWs after
December 2000 was less than required by applicable law. In response to Eritrea’s allegations, Ethiopia
submitted considerable rebuttal evidence of the increased medical care it provided at Mai Kenetal and
Dedessa from December 2000 through repatriation of the remaining POWs in November 2002. The
evidence indicated that approximately forty medical personnel staffed the Mai Kenetal clinic and that
some POW patients were taken to a local hospital. The evidence also indicated that POWs with
tuberculosis or other contagious diseases were isolated at Mai Kenetal and Dedessa and that, contrary
to Eritrea’s allegation, medical equipment was sterilized before each use. With respect to medical care
 at Dedessa, Ethiopia presented medical records rebutting the specific complaints made in a number of
the Eritrean declarations.
138. In closing, the Commission notes its recognition that Eritrea and Ethiopia cannot, at least at
present, be required to have the same standards for medical treatment as developed countries.
However, scarcity of finances and infrastructure cannot excuse a failure to grant the minimum standard
of medical care required by international humanitarian law. The cost of such care is not, in any event,
substantial in comparison with the other costs imposed by the armed conflict.

7. Unlawful Assault on Female POWs

139. Eritrea brings a discrete claim for the alleged unlawful assault of female POWs, alleging in its
Statement of Claim that Ethiopian soldiers raped female POWs and, in one case, raped and killed a
female prisoner at Sheshebit on the Western Front. The Parties agree that Article 14 of Geneva
Convention III, which provides that POWs are “entitled in all circumstances to respect for their person
and their honour” and that women “shall be treated with all the regard due to their sex,” prohibits
sexual assault of female POWs. [...]

141. The Commission finds that Eritrea has not presented clear and convincing evidence of rape,
killing or other assault aimed at female POWs. Given the small number of female Eritrean POWs, the
Commission has not looked for systematic or widespread abuse of women. The fact remains, however,
that not one of the female Eritrean declarants stated explicitly or – more importantly, given the
sensitivities – even implicitly that she was sexually assaulted, or that any other female prisoner she
knew was assaulted. Some male Eritrean declarants described occasional or frequent screaming from
the women’s quarters, but did not (and perhaps could not) observe Ethiopian guards entering or
leaving. Several declarants described abuse of women that, although serious in its own right, was
unrelated to their gender. Eritrea failed to submit evidence documenting the one rape and murder
alleged in the Statement of Claim. Ethiopia defended these claims, in large part, by presenting detailed
evidence that there were separate quarters for women in the camps, which were inspected only by
senior camp officials in pairs.
142. Accordingly, and without in any way undermining its recognition of the particular vulnerability
of female POWs, the Commission does not find Ethiopia liable for breaching customary international
law obligations to protect the person and honour of female Eritrean POWs.

8. Delayed Repatriation of POWs

143. The Commission has determined in this Award that Eritrea’s claims regarding the timely release
and repatriation of POWs are within its jurisdiction under the Agreement and Commission Decision
No. 1.
144. In its Statement of Claim, Eritrea alleged that Ethiopia failed to release and repatriate POWs
without delay after December 12, 2000. In its Memorial, Eritrea asked the Commission to “order
Ethiopia to cooperate with the International Committee of the Red Cross in effecting an immediate
release and repatriation of all POWs....” However, on November 29, 2002, shortly before the hearing in
this claim, Ethiopia released all POWs registered by the ICRC remaining in its custody. While some
chose to remain in Ethiopia for family or other reasons, 1,287 returned to Eritrea. During the hearing,
counsel for Eritrea expressed Eritrea’s great pleasure at this action. The Commission too welcomes this
important and positive step by Ethiopia, which rendered moot Eritrea’s request for an order regarding
repatriation. Nevertheless, Eritrea’s claim that Ethiopia failed to repatriate the POWs it held as
promptly as required by law remains.
145. As noted above, Eritrea acceded to the four Geneva Conventions of 1949 effective August 14,
2000, so they were in force between the Parties after that date. Article 118 of Geneva Convention III
states that “[p]risoners of war shall be released and repatriated without delay after the cessation of
active hostilities”. The Parties concluded an Agreement on the Cessation of Hostilities on June 18,
2000. However, the Commission received no evidence regarding implementation of that agreement and
could not assess whether it marked an end to active hostilities sufficiently definitive for purposes of
Article 118.
146. By contrast, Article 1 of the December 12, 2000, Agreement states that “[t]he parties shall
permanently terminate military hostilities between themselves.” Given the terms of this Agreement and
the ensuing evolution of the Parties’ relationship, including the establishment and work of this
Commission, the Commission concludes that as of December 12, 2000, hostilities ceased and the Article
118 obligation to repatriate “without delay” came into operation.
147. Applying this obligation raises some issues that were not thoroughly addressed during the
proceedings, in part because Eritrea focused on the return of POWs still detained, which was mooted on
the eve of the hearing, while Ethiopia consistently relied on the argument that these claims were outside
the Commission’s jurisdiction, a defense that the Commission has now rejected. Nevertheless, given
their everyday meaning and the humanitarian object and purpose of Geneva Convention III, these
words indicate that repatriation should occur at an early time and without unreasonable or unjustifiable
restrictions or delays. At the same time, repatriation cannot be instantaneous. Preparing and
coordinating adequate arrangements for safe and orderly movement and reception, especially of sick or
wounded prisoners, may be time-consuming. Further, there must be adequate procedures to ensure
that individuals are not repatriated against their will.
148. There is also a fundamental question whether and to what extent each Party’s obligation to
repatriate depends upon the other’s compliance with its repatriation obligations. The language of
Article 118 is absolute. Nevertheless, as a practical matter, and as indicated by state practice, any state
that has not been totally defeated is unlikely to release all the POWs it holds without assurance that its
own personnel held by its enemy will also be released, and it is unreasonable to expect otherwise. At the
hearing, distinguished counsel for Eritrea suggested that the obligation to repatriate should be seen as
unconditional but acknowledged the difficulty of the question and the contrary arguments under
general law.
149. The Commission finds that, given the character of the repatriation obligation and state practice,
it is appropriate to consider the behavior of both Parties in assessing whether or when Ethiopia failed to
meet its obligations under Article 118. In the Commission’s view, Article 118 does not require precisely
equivalent behavior by each Party. However, it is proper to expect that each Party’s conduct with
respect to the repatriation of POWs will be reasonable and broadly commensurate with the conduct of
the other. Moreover, both Parties must continue to strive to ensure compliance with the basic objective
of Article 118 – the release and repatriation of POWs as promptly as possible following the cessation of
active hostilities. Neither Party may unilaterally abandon the release and repatriation process or refuse
to work in good faith with the ICRC to resolve any impediments.
150. The Parties submitted limited evidence regarding this claim, a fact that complicates some key
judgements by the Commission. As noted, until the eve of the hearing, Eritrea’s emphasis was on the
release of POWs still being held, while Ethiopia argued that the whole matter was outside the
jurisdiction of the Commission. [...] [T]he Parties, acting with the assistance of the ICRC, began a
substantial process of repatriation in both directions promptly after December 12, 2000. Between
December 2000 and March 2001, Ethiopia repatriated 855 Eritrean POWs, 38 percent of the total
number it eventually repatriated. Eritrea repatriated a smaller number of Ethiopian POWs (628), but
they constituted 65 percent of the total eventually repatriated by Eritrea.
151. After March 2001, the process halted for a substantial period. It then resumed in October 2001
with two small repatriations by each Party. Eritrea repatriated all remaining Ethiopian POWs in August
2002. This was followed by the November 2002 Ethiopian repatriation noted above. (The only
repatriation of POWs prior to December 2000 was in August 1998 when Eritrea repatriated seventy
sick or wounded POWs to Ethiopia.) [...]

153. The record is unclear regarding the circumstances of the interruption and eventual resumption
of repatriations. The record includes an August 3, 2001, press report that the Ethiopian Ministry of
Foreign Affairs had stated that Ethiopia was suspending the exchange of POWs with Eritrea until
Eritrea clarified the situation of an Ethiopian pilot and thirty-six militia and police officers who it
understood had been captured by Eritrea in 1998, but whose names were not included in the lists of
POWs held by Eritrea that it had received from the ICRC. Eritrea responded that it would also halt
further repatriation of Ethiopian POWs but that it was willing to resume repatriations when Ethiopia
did so. [...]
[T]here were several small repatriations of POWs in October and November 2001 and in February
2002, but it seems clear that the repatriation of the bulk of the remaining POWs was held up for twelve
 months or more by a dispute over the accounting for these missing persons or other matters not in the
record before this Commission.
154. There was conflicting evidence regarding the details of the pilot’s capture, but it was common
ground that he had been captured and made a POW. The Commission received no direct evidence
concerning his fate. Eritrea’s Memorial states that “Ethiopia was repeatedly informed about the death of
the individual in question by the facilitators in the peace process.” The Memorial does not indicate
when Eritrea believes that may have occurred, nor does it provide evidence that it, in fact, did occur.
Ethiopia’s Counter-Memorial does not respond to that statement or directly address the fate of the pilot
and other personnel. Neither Party offered documentary or testimonial evidence on this point.
155. Communications between the Parties concerning the delay in repatriations were presumably
transmitted through the ICRC but, unfortunately, they have not been made available to the
Commission. However, press reports in the record suggest that, at some point, the dispute may have
been narrowed to the missing pilot. In particular, documents introduced by Eritrea indicate that, on
May 8, 2002, Professor Jacques Forster, Vice President of the ICRC, stated at a press conference at the
end of a visit in Ethiopia that the ICRC was concerned by a “slowdown on the part of both countries” in
the repatriation of POWs. However, as of that time, in the ICRC’s view, “Ethiopia was not in violation of
the four Geneva Conventions by failing to repatriate POWs.”
156. On July 16, 2002, the Prime Minister of Ethiopia confirmed in a press conference that the
“stumbling block” to the completion of the exchange of POWs was the lack of response by Eritrea to
what happened to the pilot. The next month, the dispute was evidently resolved. An ICRC press release,
dated August 23, 2002, states the following:

Geneva (ICRC) – The President of the International Committee of the Red Cross (ICRC) Mr Jakob
Kellenberger, has today completed his first visit to the region since the end of the international armed
conflict between the two countries in 2000.

During his official visits to Eritrea and Ethiopia, Mr Kellenberger met Eritrean President Isaias Afewerki
in Asmara on 20 August, and Ethiopian President Girma Wolde Georgis and Prime Minister Meles
Zenawi in Addis Ababa on 22 August.

The ICRC President’s main objective in both capitals was to ensure the release and repatriation of all
remaining Prisoners of War (POWs) in accordance with the Third Geneva Convention and the peace
agreement signed in Algiers on 12 December 2000.

During his meeting with Eritrean President Isaias Afewerki, Mr Kellenberger took note of Mr Afewerki’s
commitment to release and repatriate the Ethiopian POWs held in Eritrea. The release and repatriation
of the POWs, registered and visited by the ICRC, will take place next week.

During his meeting with Mr Kellenberger, Ethiopian Prime Minister Meles Zenawi expressed his
government’s commitment to release and repatriate the Eritrean POWs held in Ethiopia and other
persons interned as a result of the conflict. Release and repatriation will take place upon completion of
internal procedures to be worked out with the ICRC.

In both capitals, Mr Kellenberger reiterated the ICRC’s strong commitment to helping resolve all
remaining issues related to persons captured or allegedly captured during the conflict.

The ICRC welcomes the decisive steps taken towards the prompt return of the POWs to their home
country and to their families, and looks forward to facilitating the release and repatriation they have been
so anxiously awaiting for close to eighteen months.
157. While Eritrea promptly released and repatriated its remaining POWs in late August 2002,
Ethiopia waited three months, until November 29, 2002, to release the remainder of its POWs and to
repatriate those desiring repatriation. This three-month delay was not explained.
158. In these circumstances, the Commission concludes that Ethiopia did not meet its obligation
promptly to repatriate the POWs it held, as required by law. However, the problem remains to
determine the date on which this failure of compliance began, an issue on which Eritrea has the burden
of proof. Eritrea did not clearly explain the specific point at which it regarded Ethiopia as having first
violated its repatriation obligation, and Ethiopia did not join the issue, in both cases for reasons
previously explained. The lack of discussion by the Parties has complicated the Commission’s present
task.
159. Eritrea apparently dates the breach from Ethiopia’s decision in August 2001 to suspend further
repatriation of POWs until Eritrea clarified the fate of a few persons who Ethiopia believed to have been
captured by Eritrea in 1998 but who were not listed among POWs held by Eritrea. Eritrea argues that
concerns about the fate of a relatively few missing persons cannot justify delaying for a year or more the
release and repatriation of nearly 1,300 POWs. It also asserts that Ethiopia’s suspension of POW
exchanges cannot be justified as a non-forcible counter-measure under the law of state responsibility
because, as Article 50 of the International Law Commission’s Articles on Responsibility of States for
Internationally Wrongful Acts emphasizes, such measures may not affect “obligations for the protection
of fundamental human rights,” or “obligations of a humanitarian character prohibiting reprisals.”
Likewise, Eritrea points out that this conduct cannot be a permitted reprisal under the law of armed
conflict; Article 13 of Geneva Convention III emphazises that “measures of reprisal against prisoners of
war are prohibited.” As noted, Ethiopia defended this claim on jurisdictional grounds and consequently
has not responded to these legal arguments.
160. Eritrea’s arguments are well founded in law. Nevertheless, they are not sufficient to establish
that Ethiopia violated its repatriation obligation as of August 2001. In particular, the Commission is not
prepared to conclude that Ethiopia violated its obligation under Article 118 of Geneva Convention III by
suspending temporarily further repatriations pending a response to a seemingly reasonable request for
clarification of the fate of a number of missing combatants it believed captured by Eritrea who were not
listed as POWs. Eritrea presented no evidence indicating that it sought to respond to these requests, or
to establish that they were unreasonable or inappropriate.
161. In this connection, the Commission must give careful attention and appropriate weight to the
position of the ICRC. As noted above, ICRC Vice-President Forster stated in May 2002 that, as of that
time, the ICRC did not regard Ethiopia as being in breach of its repatriation obligation. Eritrea did not
address that statement. The ICRC’s conclusion is particularly worthy of respect because the ICRC was in
communication with both Parties and apparently had been the channel for communications between
them on POW matters. Consequently, the ICRC presumably had a much fuller appreciation of the
reasons for the delay in repatriations than is provided by the limited record before the Commission.
162. While the length of time apparently required to resolve this matter is certainly troubling, on the
record before it the Commission is not in a position to disagree with the conclusion of the ICRC or to
conclude that Ethiopia alone was responsible for the long delay in the repatriations that ended when
Eritrea repatriated its remaining Ethiopian POWs in August 2002. Consequently, the claim that
Ethiopia violated its repatriation obligation under Article 118 of Geneva Convention III by suspending
repatriation of POWs in August 2001 must be dismissed for failure of proof.
163. However, in view of the ICRC press release of August 23, 2002, and the repatriation of all
remaining Ethiopian POWs in that same month, the Commission sees no legal justification for the
continued prolonged detention by Ethiopia of the remaining Eritrean POWs. Ethiopia waited until
November 29, 2002, to release and repatriate the remaining Eritrean POWs. Ethiopia has not explained
this further delay, and the Commission sees no justification for its length. While several weeks might
understandably have been needed to make the necessary arrangements with the ICRC and, in
particular, to verify that those who refused to be repatriated made their decision freely, the Commission
estimates that this process should not have been required more than three weeks at the most.
Consequently, the Commission holds that Ethiopia violated its obligations under Article 118 of Geneva
Convention III by failing to repatriate 1,287 POWs by September 13, 2002, and that it is responsible to
Eritrea for the resulting delay of seventy-seven days.
V. AWARD
In view of the foregoing, the Commission determines as follows:

[...]

B. Applicable Law

1. With respect to matters prior to Eritrea’s accession to the Geneva Conventions of 1949 on August 14,
2000, the international law applicable to this claim is customary international law, including customary
international humanitarian law as exemplified by relevant parts of the four Geneva Conventions of
1949.
2. Whenever either Party asserts that a particular relevant provision of those Conventions was not part of
customary international law at the relevant time, the burden of proof will be on the asserting Party.
3. With respect to matters subsequent to August 14, 2000, the international humanitarian law applicable
to this claim is relevant parts of the four Geneva Conventions of 1949, as well as customary
international law. [...]

D. Findings of Liability for Violation of International Law

The Respondent is liable to the Claimant for the following violations of international law committed by its
military personnel and by other officials of the State of Ethiopia:

1. For failing to take effective measures to prevent incidents of beating or other unlawful abuse of Eritrean
POWs at capture or its immediate aftermath;
2. For frequently depriving Eritrean POWs of footwear during long walks from the place of capture to the
first place of detention;
3. For failing to protect the personal property of Eritrean POWs;
4. For subjecting Eritrean POWs to enforced indoctrination from July 1998 to November 2002 in the
camps at Bilate, Mai Chew, Mai Kenetal and Dedessa;
5. For permitting health conditions at Mai Kenetal to be such as seriously and adversely to affect or
endanger the health of the Eritrean POWs confined there;
6. For providing all Eritrean POWs prior to December 2000 a diet that was seriously deficient in
nutrition;
7. For failing to provide the standard of medical care required for Eritrean POWs, particularly at Mai
Kenetal, and for failing to provide required preventive care by segregating from the outset prisoners
with infectious diseases and by conducting regular physical examinations, from May 1998 until
December 2000; and
8. For delaying the repatriation of 1,287 Eritrean POWs in 2002 for seventy-seven days longer than was
reasonably required. [...]

Discussion

A. Prisoners of War, Ethiopia’s Claim 4

1.
a. Was the IHL of international armed conflicts applicable to the conflict between Eritrea and
Ethiopia? Even though Eritrea was not a party to the Geneva Conventions? (GC I-IV, Art. 2)
b. Was Convention III applicable to that conflict even before 14 August 2000, the date of Eritrea’s
accession to the Geneva Conventions? Did at least Ethiopia, as a party to the Convention, have
to respect it? (GC I-IV, Art. 2)
c. Why did Eritrea not succeed to Ethiopia as a party to the Geneva Conventions?
d. Are there specific criteria for assessing whether Convention III corresponds to customary
international law? Why? Do you agree that the examples offered by Eritrea, mentioned in para.
 29 of the Award, do not correspond to customary international law? What requirements of
Convention III does the Commission find are not requirements of customary international law?
2.
a. What is the legal basis and purpose of the ICRC’s right to visit POWs? Does such a right exist
even in conflicts where the parties are represented by Protecting Powers? (GC III, Arts 10(3) and
126; CIHL, Rule 124)
b. Are procedural rules, mechanisms or institutions for implementation prescribed by treaties
particularly unlikely to become part of customary international law? Is the ICRC’s right to visit
POWs such a procedural rule or mechanism of implementation? Why does it nevertheless
correspond to customary international law? Is the Commission’s conclusion on this issue based
on an analysis of State practice? (GC III, Art. 126; CIHL, Rule 124)
c. What impact of ICRC visits upon respect for IHL is shown by the Commission’s findings?
3. May persons be protected by both Convention I and III? In which circumstances? (GC I, Art. 14)
4. Is Article 121 of Convention III applicable to the killing of enemy soldiers at the time of capture?
Immediately before capture? (GC III, Arts 4 and 13; P I, Art. 41)
5. Must the medical care required for POWs be provided according to one single standard or does the
standard vary according to the general health standards and resources of the parties involved? In this
regard, are your thoughts in terms of housing, clothing, food, conditions of evacuation, working
conditions or criminal proceedings similar to those in terms of medical care? (GC III, Arts
15, 20, 25, 26, 27, 30, 51, 82, 87, 102 and 105)
6. In which main fields has the Commission found that Eritrea violated IHL? Which of Ethiopia’s claims
were rejected? For reasons relating to the interpretation of Convention III? For reasons relating to the
insufficient severity of the violations? Because the factual basis of those claims could not be
established?
7. Is it lawful and appropriate for the Commission not to establish all the violations committed by the
parties, but only serious violations? What are the reasons for such a limitation? What do those reasons
indicate about Convention III?
8. What are the reasons for the ICRC’s refusal to give its consent to the parties to provide the Commission
access to its reports? Could the parties have provided those reports to the Commission despite the
ICRC’s refusal? On what basis do parties to an armed conflict have an obligation to respect the ICRC’s
confidentiality?

B. Prisoners of War, Eritrea’s Claim 17

1.
a. Was the IHL of international armed conflicts applicable to the conflict between Eritrea and
Ethiopia?
b. Was Convention III applicable to that conflict even before 14 August 2000, the date of Eritrea’s
accession to the Geneva Conventions? Did at least Ethiopia, as a party to the Convention, have
to respect it? (GC I-IV, Art. 2)
2. In which main fields has the Commission found that Ethiopia violated IHL? Which of Eritrea’s claims
were rejected? For reasons relating to the interpretation of Convention III? For reasons relating to the
insufficient severity of the violations? Because the factual basis of those claims could not be
established?
3.
a. Must the medical care required for POWs be provided according to one single standard or does
the standard vary according to the general health standards and resources of the parties
involved? In this regard, are your thoughts in terms of housing, clothing, food, conditions of
evacuation, working conditions or criminal proceedings similar to those in terms of medical
care? (GC III, Arts 15, 20, 25, 26, 27, 30, 51, 82, 87, 102 and 105)
b. What do you think of the Commission’s statement in para. 138 that “scarcity of finances and
infrastructure cannot excuse a failure to grant the minimum standard of medical care required
by international humanitarian law. The cost of such care is not, in any event, substantial in
comparison with the other costs imposed by the armed conflict”?
4.
a. When should Ethiopia have repatriated all Eritrean POWs? According to the Commission?
According to Art. 118 of Convention III?
 b. When do active hostilities cease, making the repatriation of POWs compulsory under Art. 118 of
Convention III? Is a cease-fire agreement sufficient? Must it actually be implemented? What if
hostilities cease without an agreement?
c. Do you agree with the findings of the Commission in paras 145 and 160? Are they compatible
with the wording of Art. 118 of Convention III? Has “state practice” (the Commission refers to it
in para. 148) modified the sense of Art. 118? Does the Commission consider that repatriations
may be lawfully suspended if the enemy fails to comply with its repatriation obligations? Is that
compatible with Art. 13 of Convention III? Justified under the law of treaties? (See Art. 60 of the
Vienna Convention on the Law of Treaties, quotation above in Part I, Chapter 13. IX. 2 c) dd))
May this be justified under the law of State responsibility [See International Law Commission,
Articles on State Responsibility [Art. 50]]
d. Assuming, like the Commission, that the obligation to repatriate POWs may be subject to certain
considerations of reciprocity, may a State temporarily suspend repatriations of POWs who were
registered by the ICRC, pending clarification by the enemy of the fate of missing servicemen who
were not registered by the ICRC, if it believes those persons to have been captured by the
enemy? According to para. 160 of the Award? In your opinion? What is the risk for the prisoners
if their repatriation is linked to clarification of the fate of missing persons? How long does it
usually take to clarify the fate of persons who went missing during a conflict? Is the obligation to
repatriate POWs an obligation of result? Is the obligation to provide information on persons
reported as missing an obligation of result? (GC III, Arts 13, 118 and 122(7); P I, Art. 33)

b) no reciprocity

same

c) fate of POWs who refuse repatriation

Iran/Iraq, 70,000 Prisoners of War Repatriated

A. UN Security Council Resolution 598 (1987)

[Source: UN Doc. S/RES/598 (July 20, 1987), available
at http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/Chap
VII SRES 598.pdf]

The Security Council,

[...]

Deeply concerned that, despite its calls for a cease-fire, the conflict between Iran and Iraq continues unabated,
with further heavy loss of human life and material destruction, [...]

Determining that there exists a breach of the peace as regards the conflict between Iran and Iraq,

Acting under Articles 39 and 40 of the Charter of the United Nations,

1. Demands that, as a first step towards a negotiated settlement, Iran and Iraq observe an immediate cease-fire,
discontinue all military actions on land, at sea and in the air, and withdraw all forces to the internationally
recognized boundaries without delay;
2. Requests the Secretary-General to dispatch a team of United Nations Observers to verify, confirm and
supervise the cease-fire and withdrawal and further requests the Secretary-General to make the necessary
arrangements in consultation with the Parties and to submit a report thereon to the Security Council;

3. Urges that prisoners of war be released and repatriated without delay after the cessation of active hostilities
in accordance with the Third Geneva Convention of 12 August 1949;

4. Calls upon Iran and Iraq to cooperate with the Secretary-General in implementing this resolution and in
mediation efforts to achieve a comprehensive, just and honourable settlement, acceptable to both sides, of all
outstanding issues in accordance with the principles contained in the Charter of the United Nations; [...]

6. Requests the Secretary-General to explore, in consultation with Iran and Iraq, the question of entrusting an
impartial body with inquiring into responsibility for the conflict and to report to the Security Council as soon as
possible; [...]

B. Letter of July 17, 1989 from Iran

[Source: UN Doc. S/20740 (July 19, 1989)]

ANNEX

Statement dated July 17, 1989 by the Foreign Ministryof the Islamic Republic of Iran

Exactly one year ago, on July 17, 1988, the Islamic Republic of Iran removed the only remaining excuse
concocted by Iraq to prevent the implementation of Security Council resolution 598 (1987). The highest
authority of the Islamic Republic of Iran officially and unconditionally accepted resolution 598 (1987), and, in
response to the invitation of the United Nations Secretary-General, a high-level delegation was dispatched to
New York to consult with the Secretary-General about the procedures for the full and rapid implementation of
the resolution.

Unfortunately, what the Islamic Republic of Iran had always warned the international community about
materialized. Iraq, which had declared, time and again, that the only obstacle for the implementation of the
resolution was lack of official acceptance by the Islamic Republic of Iran – refused to implement the resolution
by insisting on pre-conditions which were illogical, unacceptable and contradictory to the letter and spirit of
resolution 598 (1987) and the plans of the Secretary-General. [...]

The legal and practical prominence and priority of withdrawal to the internationally recognized boundaries is
also manifested in Security Council resolution 598 (1987). Acting under Articles 39 and 40 of Chapter VII of
the Charter of the United Nations, the Security Council, in paragraph 1 of resolution 598 (1987), demanded the
cease-fire followed by withdrawal of forces to the internationally recognized boundaries without delay as a
“first step towards a negotiated settlement”. Therefore, withdrawal, which is an inseparable part of this
mandatory first step, is prior to and independent of any negotiation.

However, since the beginning of direct talks on 25 August 1988, Iraq has used every conceivable method to
evade its commitment under the resolution as well as those under general principles of international law. The
introduction of pre-conditions for the implementation of the resolution started with direct talks as a pre-
condition for cease-fire and developed into continuously evolving conditions for implementation of other
provisions, the most prominent and urgent of which is withdrawal. [...]
[...]

However, from the very first meeting of direct talks, the Foreign Minister of Iraq called for the necessity of
reaching a common understanding with regard to the cease-fire itself, and used this pretext to introduce
extraneous elements which by no extension of logic could be considered as a part of regulations for cease-fire.

It is interesting to note that both the Secretary-General [...] and Iraq [...] had excluded a cease-fire from the
agenda of direct talks. The statement of the President of Iraq is even more direct than that of the Secretary-
General in doing so. [...]

It is clear that the President of Iraq not only excludes all issues related to the cease-fire from direct talks, but
also concedes that withdrawal is the first subject on the agenda of direct talks. Yet, to this date Iraq has refused
even to comment on what it itself considered the first agenda item, and has prevented the implementation of
the resolution by introducing elements which it claimed related to the observance of the cease-fire. [...]

[...]

While Iraq has failed to comply with the prominent element of the resolution and withdraw to the
internationally recognized boundaries and refused to accept any proposal of the Secretary-General, it has
selected one element of the resolution – namely the question of prisoners of war (POWs) – and with a view to
undermining the resolution itself, has called for its implementation outside the framework of the resolution.
However, what has actually occurred in the past year proves the lack of good will on the part of Iraq even
regarding this issue. The timetable presented by the Secretary-General and accepted by the Islamic Republic of
Iran called for the release and repatriation of all prisoners of war within 90 days. Had Iraq accepted that
proposal, all POWs would have been released and repatriated by November 20, 1988. Likewise, had Iraq
accepted – like the Islamic Republic of Iran – the four-point plan of October 1, 1988, all POWs would have
been released and repatriated by the end of 1988. It is clear, therefore, that Iraq does not seek the release and
repatriation of POWs; rather it endeavours to undermine and disintegrate resolution 598 (1987) and sabotage
the efforts of the Secretary-General.

Another illustration of the real intention of Iraq with regard to POWs is the number of registered Iranian POWs
in Iraq. Iraqi officials claimed during the last days of the war that the number of POWs on two sides had
become balanced. Recently, the Governor of Basra claimed that only during the last year of the war did Iraq
capture more than 25,000 Iranian prisoners. None of these prisoners have been registered. In fact, while close
to 50,000 Iraqi POWs have been registered in the Islamic Republic of Iran by the International Committee of
the Red Cross, Iraq has allowed the registration of only about 18,000 prisoners. Therefore, if Iraq has any real
humanitarian concern for POWs, it has to bring the number of registered prisoners to a balance, since
proportionality with regard to POWs has always been the Iraqi line. The International Committee of the Red
Cross bears special responsibility to convince and compel Iraq to register these prisoners and bring the number
of registered POWs on the two sides to a balance.

Close to one year after the establishment of the cease-fire, nothing has been achieved in the road to peace
between Iran and Iraq. This brief assessment of the underlying reasons behind the stalemate clearly illustrates
the fact that Iraq has failed to comply with a mandatory resolution of the Security Council adopted under
Articles 39 and 40 of Chapter VII. The Security Council has committed itself [...] [in] resolution 598 (1987) – to
take appropriate measures to ensure compliance with the resolution. Failure to do so will not only be a
violation of the resolution by its authors, it will also be a violation of the trust the United Nations has placed on
the Security Council as the primary organ responsible for maintenance of international peace and security. The
institutional implications of political expediency on the part of some members of the Council who have
confused bilateral relations with their official function as members of the Security Council are grave, and the
precedent it creates is disastrous. If the Security Council fails to take resolute measures to ensure compliance
with a resolution it adopted with massive international fanfare, it cannot expect other Member States to entrust
to the Council and United Nations the resolution of conflicts [...].

C. Letter of July 21, 1989 from Iraq

[Source: UN Doc. S/20744 (July 21, 1989)]

ANNEX

Commenting on the communiqué issued by the Iranian Military of Foreign Affairs on July 17, 1989, a
spokesman for the Permanent Mission of Iraq in New York stated as follows:

“On 17 July the Iranian Ministry of Foreign Affairs issued a communiqué concerning the situation between Iraq
and Iran and the progress of the negotiations that was full of fallacies and lies. For purposes of clarification, we
should like to set forth the following facts:

“1. The communiqué of the Iranian Ministry of Foreign Affairs made it appear that Iran accepted resolution
598 (1987) officially on July 18, 1988 as a diplomatic step taken by the Iranian Government to facilitate the
implementation of resolution 598 (1987). The truth, as the members of the international community know, is
that Iran did not accept resolution 598 (1987), which was binding after its adoption, but used in dealing with its
various kind of stratagems and manoeuvres in an attempt to prolong the war and win time in the hope of
achieving its aggressive expansionist goals. [...]

[...]

“3. The agreement reached between Iraq and Iran on 8 August 1988 through the Secretary-General of the
United Nations removes all doubts about the topics to be dealt with in the direct negotiations under the
auspices of the Secretary-General. These topics are all the provisions of the resolution that have not been
implemented so far. [...]

“The one topic that actually does lie outside the scope of the negotiations is the topic of the release of prisoners.
Paragraph 3 of resolution 598 (1987) and article 118 of the Geneva Convention relative to the Treatment of
Prisoners of War of 1949 and precedents throughout the international community all affirm in a way that
admits of no other interpretation the binding obligation to release and exchange prisoners without delay after
the cessation of active hostilities and entrust the supervision of this process to the International Committee of
the Red Cross. The Iranian side’s insistence on not proceeding to release and exchange prisoners after a year
has elapsed since the cessation of active hostilities fully demonstrates how incompatible this régime’s position
is with international law and international humanitarian law and its readiness to gamble with the lives and
suffering of tens of thousands of Iraqi and Iranian human beings in order to achieve political ends. It shows
once again the selective approach adopted by this régime throughout the years of conflict with regard to
Security Council resolutions and the provisions of international law, taking from them what it will and refusing
to be bound by the obligations which they create for it.

“The fallacies contained in the communiqué of the Iranian Foreign Ministry regarding the question of the
registration of the prisoners is another proof of the bad intentions of the Iranian régime and its constant
inclination to trickery and plays on words at the expense of human beings. The question of the registration of
the prisoners is clear and unambiguous in international law; it is incumbent on the parties to the dispute to
inform the Red Cross promptly of the number of prisoners and to provide the necessary information
concerning them without delay.
“We informed the President of the International Committee of the Red Cross and the Secretary-General of the
United Nations officially of our readiness to register all Iranian prisoners who were not registered when the
Iranian side showed the same readiness, and the Security Council is cognizant of this. Resorting to percentages
on this question is a contravention of international law and a ruse. Indeed, it is an unethical procedure, making
human beings into numbers. Iraq rejects it on ethical and legal grounds and reaffirms the obligation on both
parties to inform the International Committee of the Red Cross at the same time of the names of all non-
registered prisoners. [...]

“5. Iraq once again affirm its will to continue the negotiation process under the auspices of the Secretary-
General of the United Nations. if the Iranian side is serious about arriving at a comprehensive and lasting
peaceful settlement, it has only to respond to the Secretary-General’s invitation and concur with Iraq’s wish to
sit down at the negotiating table under the auspices of the Secretary-General and enter into genuine direct
negotiations with a view to arriving at a common understanding of the peace plan and the positioning of the
necessary mechanisms for its implementation. [...]

D. Iran/Iraq: more than 70,000 POWs repatriated

[Source: ICRC Bulletin, No. 177, October 1990, p. 1]

By 14 September, over 70,000 prisoners had returned home in the operation launched on 17 August to
repatriate all prisoners of war captured during the conflict between Iraq and Iran. As reported in the last
Bulletin (No. 176, September 1990), about 60 delegates had been sent out from Geneva as of 18 August to
reinforce the two ICRC delegations in Baghdad and Teheran. By the end of the month, 77 delegates were at
work in the two countries.

During the period from 17 to 31 August, more than 2,000 prisoners of war were released daily overland via the
border post at Qasr-e-Shirin, air shuttles were organized as from 22 August. A total of 798 Iranian prisoners of
war and 1,193 Iraqi prisoners of war were flown back to their respective countries on three flights by Iran Air
Jumbo jet, while the ICRC chartered an aircraft to repatriate (on four flights) some 500 wounded and sick
prisoners (221 Iranians and 257 Iraqis). Two more flights under ICRC auspices were made on 13 September to
repatriate another 210 wounded and sick Iranian prisoners of war.

From the end of August, overland operations continued, with a daily flow of 900 prisoners in each direction,
rising to a daily figure of 2,000 men both ways from 10 September.

ICRC delegates record each prisoner’s identity and make sure they are returning to their countries of their own
free will.

The prisoners repatriated include captives whom the ICRC had been unable, both in Iraq and in Iran, to visit
during their detention. The delegates took this opportunity to register them.

Throughout the past weeks, the ICRC has maintained a constant dialogue with the Iraqi and Iranian
authorities, in order to plan the remaining repatriations as efficiently as possible and arrange for all prisoners
of war on both sides to be back home again soon.

Discussion

1.
a. What do the provisions of IHL stipulate regarding the repatriation of prisoners of war “after the
cessation of active hostilities”? (GC III, Art. 118; CIHL, Rule 128)
 b. When are active hostilities considered to have ceased? After the establishment of a cease-fire?
Only after the withdrawal of all military forces to the internationally recognized borders? Only
after Iran and Iraq have reached a final peace treaty? Had active hostilities between Iran and
Iraq ceased to such an extent in summer 1989 that prisoners of war should have been
repatriated?
c. Does the fact that Security Council Resolution 598 (1987) provides for the repatriation of
prisoners of war in its operative para. (3) thereof mean that the prisoners of war have to be
repatriated only once operative paras (1) and (2) have been complied with? If this implication
were correct, would it be compatible with IHL? If the Security Council Resolution contradicts
IHL, does the resolution take precedence under Art. 103 of the UN Charter? (GC III, Arts 1 and
118; CIHL, Rule 128) [Article 103 of the UN Charter, available on
http://www.un.org/en/documents/charter/, reads: “In the event of a conflict between the
obligations (...) under the present Charter and (...) obligations under any other international
agreement, (...) obligations under the present Charter shall prevail”.]
d. Is the Iraqi position correct that the repatriation of prisoners of war lies “outside the scope of the
negotiations” between the parties? (GC III, Arts 6 and 118; CIHL, Rule 128)
e. Is Iraq correct in stating that IHL affirms the “binding obligation to release and exchange
prisoners without delay after the cessation of hostilities”? Does Iraq have an obligation to
repatriate them even though Iran does not do so ? Has Iraq complied with that obligation?
(GC III, Arts 1, 13(3) and 118; Vienna Convention on the Law of Treaties, Art. 60(5))
2.
a. What are the responsibilities of the parties to the conflict regarding the registration of prisoners
of war? (GC III, Arts 70 and 122; CIHL, Rule 123)
b. Are a party’s responsibilities towards its prisoners of war applicable solely on the principle of
reciprocity? Is Iran correct in stating that the ICRC has a responsibility to compel Iraq to
register prisoners of war? And also that it has “to bring the number of registered POWs on the
two sides to a balance”? (GC III, Arts 13(3), 70, 122, 123 and 126; CIHL, Rule 140)
c. Is Iraq correct in stating that “it is incumbent on the parties (...) to inform the Red Cross
promptly of the number of prisoners and to provide the necessary information”? Is the Iraqi
position indicating its “readiness to register all Iranian prisoners (...) when the Iranian side
showed the same readiness” acceptable under IHL? (GC III, Arts 13(3), 70 and 122; CIHL,
Rule 140)
3. Who has to determine whether a POW objects to his/her repatriation? The ICRC? Is that provided for
in IHL? Why does the ICRC insist on visiting prisoners and interviewing them without witnesses? Does
the ICRC have a right to insist on the latter condition? (GC III, Art. 126)
4. Do you agree with Iran’s statement in the letter’s last paragraph concerning the credibility of the
Security Council? Can such a conclusion not also extend to the credibility of IHL? Does this situation
between Iran and Iraq demonstrate the ineffectiveness of IHL? (GC I-IV, Art. 1; CIHL, Rule 139)
5. Security Council Resolution 598 (1987) addresses both political and humanitarian issues; what kind of
problems does such a mixture of elements raise? Should the Security Council have omitted any
reference to IHL and prisoners of war? Would that have improved the situation?

Bosnia and Herzegovina, Release of Prisoners of War and Tracing Missing Persons After the End of
Text

A. General Framework Agreement for Peace in Bosnia and Herzegovina

[Source: Reproduced in extenso in ILM, vol. 35, 1996, p. 75]

Concluded on November 21, 1995 in Dayton (United States) and signed in Paris on December 14, 1995 by the
Presidents of the Republic of Bosnia and Herzegovina, the Federal Republic of Yugoslavia and the Republic of
Croatia. (This Agreement brought the hostilities on the territory of Bosnia and Herzegovina to an end.)

Annex 1A: Agreement on the Military Aspects of the Peace Settlement

Article IX: Prisoner Exchanges
 1. The Parties shall release and transfer without delay all combatants and civilians held in relation to the
conflict (hereinafter “prisoners”), in conformity with international humanitarian law and the provisions
of this Article.
a. The Parties shall be bound by and implement such plan for release and transfer of all prisoners
as may be developed by the ICRC, after consultation with the Parties.
b. The Parties shall cooperate fully with the ICRC and facilitate its work in implementing and
monitoring the plan for release and transfer of prisoners.
c. No later than thirty (30) days after the Transfer of Authority [which had to take place on
December 19, 1995], the Parties shall release and transfer all prisoners held by them.
d. In order to expedite this process, no later than twenty-one (21) days after this Annex enters into
force, the Parties shall draw up comprehensive lists of prisoners and shall provide such lists to
the ICRC, to the other Parties, and to the Joint Military Commission and the High
Representative. These lists shall identify prisoners by nationality, name, rank (if any) and any
internment or military serial number, to the extent applicable.
e. The Parties shall ensure that the ICRC enjoys full and unimpeded access to all places where
prisoners are kept and to all prisoners. The Parties shall permit the ICRC to privately interview
each prisoner at least forty-eight (48) hours prior to his or her release for the purpose of
implementing and monitoring the plan, including determination of the onward destination of
each prisoner.
f. The Parties shall take no reprisals against any prisoner or his/her family in the event that a
prisoner refuses to be transferred.
g. Notwithstanding the above provisions, each Party shall comply with any order or request of the
International Tribunal for the Former Yugoslavia for the arrest, detention, surrender of or
access to persons who would otherwise be released and transferred under this Article, but who
are accused of violations within the jurisdiction of the Tribunal. Each Party must detain persons
reasonably suspected of such violations for a period of time sufficient to permit appropriate
consultation with Tribunal authorities.
2. In those cases where places of burial, whether individual or mass, are known as a matter of record, and
graves are actually found to exist, each Party shall permit graves registration personnel of the other
Parties to enter, within a mutually agreed period of time, for the limited purpose of proceeding to such
graves, to recover and evacuate the bodies of deceased military and civilian personnel of that side,
including deceased prisoners.

B. Tracing Missing Persons in Bosnia and Herzegovina

[Source: Girod C., “Bosnia-Herzegovina: Tracing Missing Persons”, in IRRC, No. 312, 1996, pp. 387-391]

Every war brings its share of missing persons, whether military or civilian. And every individual reported
missing is then sought by a family anxiously awaiting news of their loved one. These families cannot be left in
such a state of anguish.

For the truth, however painful it may be, is preferable to the torture of uncertainty and false hope. In Bosnia
and Herzegovina civilians were especially affected by a conflict in which belligerents pursued a policy of ethnic
cleansing by expelling minority groups from certain regions. Thousands of people who disappeared in combat
or were thrown into prison, summarily executed or massacred, are still being sought by their families.

What is a missing person?

International humanitarian law contains several provisions stipulating that families have the right to know
what has happened to their missing relatives and that the warring parties must use every means at their
disposal to provide those families with information [...]. Taking these two cardinal principles in particular as a
basis for action, the International Committee of the Red Cross (ICRC) has set up various mechanisms to assist
families suffering the agony of uncertainty, even after the guns have fallen silent.
In any conflict the ICRC starts out by trying to assess the problem of persons reported missing. Families
without news of their relatives are asked to fill out tracing requests describing the circumstances in which the
individual sought was last seen. Each request is then turned over to the authorities with whom the person in
question last had contacts. This working method means that the number of people gone missing does not
correspond to the actual number of conflict victims – a gruesome count which the ICRC does not intend to
perform. In Bosnia and Herzegovina, more than 10,000 families have so far submitted tracing requests to the
ICRC or to the National Red Cross or Red Crescent Societies in their countries of asylum.

Agreements for Peace in Bosnia and Herzegovina [...]

Prior to the drafting of the General Framework Agreement for Peace in Bosnia and Herzegovina, which the
parties negotiated in Dayton, Ohio, in autumn 1995, the United States consulted the main humanitarian
organizations. With the ICRC it discussed the release of detainees and the tracing of missing persons. The first
of these issues is dealt with in the Annex on Military Aspects of the Peace Settlement, and the second is covered
in the Framework Agreement’s provisions pertaining to civilians. Thus Article V, Annex 7, of the Agreement
stipulates that: “The Parties shall provide information through the tracing mechanisms of the ICRC on all
persons unaccounted for. The Parties shall also cooperate fully with the ICRC in its efforts to determine the
identities, whereabouts and fate of the unaccounted for”. The terms of this Article take up and confirm the core
principles of international humanitarian law.

The Framework Agreement also confers on the ICRC the task of organizing, in consultation with the parties
involved, and overseeing the release and transfer of all civilian and military prisoners held in connection with
the conflict. The ICRC performed this task in cooperation with the Implementation Force (IFOR) entrusted
with carrying out the military provisions of the Framework Agreement.

ICRC action
Despite resistance from the parties, over 1,000 prisoners were returned home. Throughout the operation,
which lasted about two months, the ICRC firmly refused to link the release process with the problem of missing
persons, just as it had refused to become involved in the reciprocity game the parties used to play during the
conflict. The success of the operation was also ensured by the international community, which was convinced
that the ICRC was taking the right approach and pressured the parties to cooperate. Since many detainees had
been withheld from the ICRC and were therefore being sought by their families, it was important to empty the
prisons before addressing the issue of missing persons.

On the basis of the General Framework Agreement for Peace in Bosnia and Herzegovina, the ICRC thus
proposed that the former belligerents set up a Working Group on the Process for Tracing Persons Unaccounted
for in Connection with the Conflict on the Territory of Bosnia and Herzegovina – a convoluted title reflecting
the nature of the political negotiations that led to the establishment of this body. While the parties endorsed
the proposal itself, they engaged in endless quibbling over the wording of the Rules of Procedure and of the
Terms of Reference drafted by the ICRC. Nevertheless, the Working Group, which is chaired by the ICRC, has
already met three times in the Sarajevo offices of the High Representative for Bosnia and Herzegovina[2] in the
presence of the ambassadors of the Contact Group on Bosnia and Herzegovina[3], the representative of the
presiding member of the European Union[4] and the representatives of Croatia and the Federal Republic of
Yugoslavia. These meetings were also attended by IFOR and the United Nations Expert on Missing Persons in
the Former Yugoslavia[5].

Despite numerous plenary and bilateral working sessions, it has not been possible to bring the parties to agree
on matters of participation and representation (the question under discussion is whether or not the former
belligerents are the same as the parties that signed the Framework Agreement) or formally to adopt the Rules
of Procedure. However, these Rules have been tacitly agreed on in the plenary meetings, making it possible to
begin practical work: more than 10,000 detailed cases of persons reported missing by their families have
already been submitted to the parties, which must now provide replies.
In a remarkable departure from the procedure normally followed in such cases, the Working Group has
adopted a rule whereby the information contained in the tracing requests, as well as the replies that the parties
are called on to provide, are not only exchanged bilaterally between the families and the parties concerned
through the intermediary of the ICRC, but are also communicated to all the members of the Working Group,
that is, to all the former belligerents, and to the High Representative. Such a policy of openness is meant to
prevent further politicization of the issue and the ICRC intends to pursue it, in particular by issuing a gazette
that lists the names of all missing persons and by publishing these names on the Internet. This should prompt
possible witnesses to approach the ICRC with confidential information concerning the fate of individuals who
have gone missing, which the organization could then pass on to the families concerned.

Indeed, after every war families seek news of missing relatives and the settlement of this question is always a
highly political issue. One reason is that for a party to provide information is to admit that it knows something,
which may give it the feeling that it is owning up to some crime. Another reason is that the anguish of families
with missing relatives is such that they generally band together and pressure their authorities to obtain
information from the opposite party, which may be tempted to use these families to destabilize the other side.

The issue of exhumations

As the tragic result of more than three years of conflict, Bosnia and Herzegovina is strewn with mass graves in
which thousands of civilians were buried like animals. The graves in the region of Srebrenica are a horrifying
example. Displaced families in Tuzla interviewed by the ICRC allege that more than 3,000 people were arrested
by Bosnian Serb forces immediately after the fall of the enclave in mid-July 1995. Since the authorities in Pale
have persistently refused to say what happened to these people, the ICRC has concluded that all of them were
killed.

Families now wish to recover the bodies of their missing relatives in the wild hope of being able to identify
them. Before this can be done, however, an ante mortem database[6] must be set up so as to have a pool of
information with which forensic evidence can later be compared. Between the two operations, the bodies must
be exhumed, knowing that most of the mass graves in Bosnia and Herzegovina are situated on the other side of
ethnic boundaries, which prevents families and the relevant authorities from gaining access to them.

Families are also demanding that justice be done. That is the role of the International Criminal Tribunal for the
Former Yugoslavia, set up by the United Nations Security Council while the fighting was still raging in Bosnia
and Herzegovina. The Tribunal intends to exhume a number of bodies to establish the cause of death and
gather evidence and proof of massacres. However, it is not the Tribunal’s responsibility to identify the bodies or
to arrange for their proper burial.

Between the families’ need and right to know what has become of their missing relatives, and that justice must
be done, lie thousands of bodies in the mass graves. While it would probably be unrealistic to imagine that all
the bodies buried in Bosnia and Herzegovina could ever be exhumed and identified,[7] the moral issue of their
proper burial must still be addressed. Without the cooperation of the former belligerents and of IFOR,
however, all discussion remains purely theoretical. Only when people have peace in their hearts and when
justice has been done will thoughts of revenge be forgotten and belief in peace and justice be restored in every
individual and every community.

Notes: [...]

2. Former Swedish Prime Minister Carl Bildt’s appointment to this post was confirmed by the United Nations
Security Council shortly before the General Framework Agreement for Peace in Bosnia and Herzegovina was
signed in Paris on December 14, 1995. Just as IFOR, which is made up of NATO troops and Russian troops, is
entrusted with implementing the military provisions of the Framework Agreement, so it is the task of the High
Representative to implement the Agreement’s provisions pertaining to civilians.
3. France, Germany, the Russian Federation, the United Kingdom and the United States.

4. Italy at the time of writing.

5. Manfred Nowak, who in 1994 was appointed by the UN Commission on Human Rights as the Expert in
charge of the Special Process on Missing Persons in the Territory of the Former Yugoslavia.

6. A database containing all pertinent medical information that can be obtained from families with missing
relatives.

7. According to the forensic experts of the American organization, Physicians for Human Rights, who
exhumed bodies for the International Criminal Tribunal that was set up following the horrific massacres in
Rwanda, the success rate for identifying remains exhumed from a grave containing several hundred bodies is
no higher than 10 to 20 percent, providing a detailed ante mortem database is available.

Discussion

1.
a. In view of its title “Prisoner Exchanges”, does Art. IX of the Dayton Agreement’s Annex 1-A
provide for a unilateral obligation to release prisoners? Under IHL, is that obligation unilateral
or may it be subject to reciprocity? May the Agreement deviate from IHL by subjecting the
obligation to reciprocity? (GC III, Arts 6 and 118; GC IV, Arts 7 and 133) [See also Former
Yugoslavia, Special Agreements Between the Parties to the Conflicts [Part B., Art. 2.3(2)]]
b. Which provisions of Art. IX(1) go beyond the obligations laid down by IHL? (GC III, Arts 118,
122, 123 and 126; GC IV, Arts 133, 134, 137, 138, 140 and 143)
c. Is Art. IX(1)(g) compatible with the obligations laid down by IHL with regard to grave breaches?
Must a Party release a prisoner it suspects of a war crime but for whom the ICTY does not
request arrest, detention, surrender, or access at the end of the “period of consultations”: Under
Art. IX(1)? Under IHL? May a Party release such a person under IHL? Was the further
agreement of the Parties, concluded in Rome, under which no person may be retained or
arrested on war crimes charges except with the permission of the ICTY, compatible with IHL?
Can you imagine why the US pressed the Parties to conclude such an agreement? (GC III, Arts
118, 119(5) and 129-131; GC IV, Arts 133 and 146-148)
d. Why did the ICRC refuse to link the release of prisoners to the problem of missing persons?
Under IHL, is not a missing person for whom a testimony of their arrest by the enemy exists, or
who was once visited by the ICRC, a prisoner to be released?
2. Which elements of the ICRC’s activities to trace missing persons in Bosnia and Herzegovina go beyond
IHL? Under IHL, does a party to an international armed conflict have an obligation, at the end of the
conflict:
o to search for persons reported missing by the adverse party?
o to provide all information it has on the fate of such persons?
o to identify mortal remains of persons it must presume to have belonged to the adverse party?
o to inform of the cause of death of a person whose mortal remains it has identified?
o to inform unilaterally of the results of such identification?
o to return identified mortal remains to the party to which the persons belonged?
o to give proper burial to identified and non-identified mortal remains?
o to give families belonging to the adverse side access to their relatives’ graves?

(GC I, Arts 15-17; GC III, Arts 120, 122 and 123; GC IV, Arts 26 and 136-140; P I, Arts 32-34)

a.
 a. Why does the ICRC only submit cases of missing persons that have been submitted to it by their
families? Does IHL support that decision? Does IHL also give a party to a conflict the right to
submit tracing requests? Has the ICRC an obligation to accept such requests? (P I, Art. 32; GC I,
Art. 16; GC III, Arts 122(3), (4), (6) and 123; GC IV, Arts 137 and 140)
b. What are the reasons for, and the advantages and risks of, the solution whereby all tracing
requests and replies are to be communicated to all members of the Working Group chaired by
the ICRC? Does that prevent politicization?

3. Does Art. IX(2) go beyond the obligations provided for by IHL? Does this provision place each side
under a unilateral obligation to allow the other side’s grave registration personnel to have access to
graves? May a Party use evidence of war crimes, obtained by its grave registration personnel acting
under Art. IX(2), in war crimes trials? (P I, Art. 34)

3. Internment in neutral countries

CASES OF REPATRIATION AND ACCOMMODATION

ARTICLE 110 [ Link ]

The following shall be repatriated direct:

(1) Incurably wounded and sick whose mental or physical fitness seems to have been gravely diminished.

(2) Wounded and sick who, according to medical opinion, are not likely to recover within one year, whose
condition requires treatment and whose mental or physical fitness seems to have been gravely diminished.

(3) Wounded and sick who have recovered, but whose mental or physical fitness seems to have been gravely
and permanently diminished.

The following may be accommodated in a neutral country:

(1) Wounded and sick whose recovery may be expected within one year of the date of the wound or the
beginning of the illness, if treatment in a neutral country might increase the prospects of a more certain and
speedy recovery.

(2) Prisoners of war whose mental or physical health, according to medical opinion, is seriously threatened by
continued captivity, but whose accommodation in a neutral country might remove such a threat.

The conditions which prisoners of war accommodated in a neutral country must fulfil in order to permit their
repatriation shall be fixed, as shall likewise their status, by agreement between the Powers concerned. In
general, prisoners of war who have been accommodated in a neutral country, and who belong to the following
categories, should be repatriated:

(1) those whose state of health has deteriorated so as to fulfil the conditions laid down for direct repatriation;

(2) those whose mental or physical powers remain, even after treatment, considerably impaired.

If no special agreements are concluded between the Parties to the conflict concerned, to determine the cases
of disablement or sickness entailing direct repatriation or accommodation in a neutral country, such cases shall
be settled in accordance with the principles laid down in the Model Agreement concerning direct repatriation
and accommodation in neutral countries of wounded and sick prisoners of war and in the Regulations
concerning Mixed Medical Commissions annexed to the present Convention.

PART I - PRINCIPLES FOR DIRECT REPATRIATION AND ACCOMMODATION IN NEUTRAL COUNTRIES

Annex I [ Link ] : Model agreement concerning direct repatriation and accommodation in neutral countries of
wounded and sick prisoners of war (see Article 110 [ Link ] )

A. Direct repatriation

The following shall be repatriated direct:

(1) All prisoners of war suffering from the following disabilities as the result of trauma: loss of limb, paralysis,
articular or other disabilities, when this disability is at least the loss of a hand or a foot, or the equivalent of the
loss of a hand or a foot.
Without prejudice to a more generous interpretation, the following shall be considered as equivalent to the loss
of a hand or a foot:

(a) Loss of a hand or of all the fingers, or of the thumb and forefinger of one hand; loss of a foot, or of all the
toes and metatarsals of one foot.

(b) Ankylosis, loss of osseous tissue, cicatricial contracture preventing the functioning of one of the large
articulations or of all the digital joints of one hand.

(c) Pseudarthrosis of the long bones.

(d) Deformities due to fracture or other injury which seriously interfere with function and weight-bearing power.

(2) All wounded prisoners of war whose condition has become chronic, to the extent that prognosis appears to
exclude recovery -- in spite of treatment -- within one year from the date of the injury, as, for example, in case
of:

(a) Projectile in the heart, even if the Mixed Medical Commission should fail, at the
time of their examination, to detect any serious disorders.

(b) Metallic splinter in the brain or the lungs, even if the Mixed Medical
Commission cannot, at the time of examination, detect any local or general
reaction.

(c) Osteomyelitis, when recovery cannot be foreseen in the course of the year
following the injury, and which seems likely to result in ankylosis of a joint,
or other impairments equivalent to the loss of a hand or a foot.

(d) Perforating and suppurating injury to the large joints.

(e) Injury to the skull, with loss or shifting of bony tissue.

(f) Injury or burning of the face with loss of tissue and functional lesions.

(g) Injury to the spinal cord.

(h) Lesion of the peripheral nerves, the sequelae of which are equivalent to the
loss of a hand or foot, and the cure of which requires more than a year from the
date of injury, for example: injury to the brachial or lumbosacral plexus, the median
or sciatic nerves, likewise combined injury to the radial and cubital nerves or
to the lateral popliteal nerve (N.peroneus communis) and medial popliteal
nerve (N. tibialis); etc. The separate injury of the radial (musculo-spiral),
cubital, lateral or medial popliteal nerves shall not, however, warrant
repatriation except in case of contractures or of serious neurotrophic
disturbance.
(i) Injury to the urinary system, with incapacitating results.

(3) All sick prisoners of war whose condition has become chronic to the extent that prognosis seems to exclude
recovery -- in spite of treatment -- within one year from the inception of the disease, as, for example, in case of:

(a) Progressive tuberculosis of any organ which, according to medical prognosis,

cannot be cured, or at least considerably improved, by treatment in a neutral
country.

(b) Exudate pleurisy.

(c) Serious diseases of the respiratory organs of non-tubercular etiology, presumed

incurable, for example: serious pulmonary emphysema, with or without bronchitis;
chronic asthma *; chronic bronchitis * lasting more than one year in captivity;
bronchiectasis *; etc.

(d) Serious chronic affections of the circulatory system, for example: valvular
lesions and myocarditis *, which have shown signs of circulatory failure during
captivity, even though the Mixed Medical Commission cannot detect any such signs at
the time of examination; affections of the pericardium and the vessels (Buerger's
disease, aneurism of the large vessels); etc.

(e) Serious chronic affections of the digestive organs, for example: gastric or
duodenal ulcer; sequelae of gastric operations performed in captivity; chronic
gastritis, enteritis or colitis, having lasted more than one year and seriously
affecting the general condition; cirrhosis of the liver; chronic cholecystopathy *;
etc.

(f) Serious chronic affections of the genito-urinary organs, for example:

chronic diseases of the kidney with consequent disorders; nephrectomy because
of a tubercular kidney; chronic pyelitis or chronic cystitis; hydronephrosis or
pyonephrosis; chronic grave gynaecological conditions; normal pregnancy and
obstetrical disorder, where it is impossible to accommodate in a neutral
country; etc.

(g) Serious chronic diseases of the central and peripheral nervous system, for
example: all obvious psychoses and psychoneuroses, such as serious hysteria,
serious captivity psychoneurosis, etc., duly verified by a specialist *; any
epilepsy duly verified by the camp physician *; cerebral arteriosclerosis;
chronic neuritis lasting more than one year; etc.

(h) Serious chronic diseases of the neuro-vegetative system, with considerable

diminution of mental or physical fitness, noticeable loss of weight and general
asthenia.

(i) Blindness of both eyes, or of one eye when the vision of the other is less than 1 in
spite of the use of corrective glasses; diminution of visual acuity in cases where
it is impossible to restore it by correction to an acuity of 1/2 in at least
one eye *; other grave ocular affections, for example: glaucoma, iritis,
choroiditis; trachoma; etc.

(k) Auditive disorders, such as total unilateral deafness, if the other ear does
not discern the ordinary spoken word at a distance of one metre *; etc.

(l) Serious affections of metabolism, for example: diabetes mellitus requiring

insulin treatment; etc.
(m) Serious disorders of the endocrine glands, for example: thyrotoxicosis; hypotyrosis;
Addison's disease; Simmonds' cachexia; tetany; etc.

(n) Grave and chronic disorders of the blood-forming organs.

(o) Serious cases of chronic intoxication, for example: lead poisoning, mercury
poisoning, morphinism, cocainism, alcoholism; gas or radiation poisoning;
etc.

(p) Chronic affections of locomotion, with obvious functional disorders, for example:
arthritis deformans; primary and secondary progressive chronic polyarthritis;
rheumatism with serious clinical symptoms; etc.

(q) Serious chronic skin diseases, not amenable to treatment.

(r) Any malignant growth.

(s) Serious chronic infectious diseases, persisting for one year after their
inception, for example: malaria with decided organic impairment, amoebic or
bacillary dysentery with grave disorders; tertiary visceral syphilis resistant to
treatment; leprosy; etc.

(t) Serious avitaminosis or serious inanition.

* The decision of the Mixed Medical Commission shall be based to a great extent on the records kept by camp
physicians and surgeons of the same nationality as the prisoners of war, or on an examination by medical
specialists of the Detaining Power.

B. Accommodation in neutral countries

The following shall be eligible for accommodation in a neutral country:

(1) All wounded prisoners of war who are not likely to recover in captivity, but who might be cured or whose
condition might be considerably improved by accommodation in a neutral country.

(2) Prisoners of war suffering from any form of tuberculosis, of whatever organ, and whose treatment in a
neutral country would be likely to lead to recovery or at least to considerable improvement, with the exception
of primary tuberculosis cured before captivity.

(3) Prisoners of war suffering from affections requiring treatment of the respiratory, circulatory, digestive,
nervous, sensory, genito-urinary, cutaneous, locomotive organs, etc., if such treatment would clearly have
better results in a neutral country than in captivity.

(4) Prisoners of war who have undergone a nephrectomy in captivity for a non-tubercular renal affection; cases
of osteomyelitis, on the way to recovery or latent; diabetes mellitus not requiring insulin treatment; etc.

(5) Prisoners of war suffering from war or captivity neuroses. Cases of captivity neurosis which are not cured
after three months of accommodation in a neutral country, or which after that length of time are not clearly on
the way to complete cure, shall be repatriated.

(6) All prisoners of war suffering from chronic intoxication (gases, metals, alkaloids, etc), for whom the
prospects of cure in a neutral country are especially favourable.

(7) All women prisoners of war who are pregnant or mothers with infants and small children.
The following cases shall not be eligible for accommodation in a neutral country:

(1) All duly verified chronic psychoses.

(2) All organic or functional nervous affections considered to be incurable.

(3) All contagious diseases during the period in which they are transmissible, with the exception of
tuberculosis.

Afghanistan, Soviet Prisoners Transfered to Switzerland

Text
[Source: IRRC, No. 241, 1984, pp. 239-240.]

Conflict in Afghanistan

The first three Soviet soldiers, who had been captured in Afghanistan by opposition movements and
transferred to Switzerland by the ICRC on May 28, 1982, have reached the end of their two-year period of
internment agreed upon with the parties concerned. One of them, who confirmed his desire to be transferred to
his country of origin, has returned to the USSR. The other two soldiers informed the Swiss authorities that they
did not wish to return to their country. Their status will be determined by the Swiss authorities in accordance
with the legislation in force.

The ICRC took this opportunity to make public its position regarding all the victims of the Afghan conflict in
the following press release, published on May 20, in Geneva:

“Since 1979, the ICRC has made every effort to provide protection and assistance to the civilian and military
victims of the armed conflict in Afghanistan, in accordance with the mandate conferred upon it in the Geneva
Conventions and the statutes of the International Red Cross. On several occasions, it has reminded the
parties whose armed forces are engaged in the conflict of their obligations under international humanitarian
law. However, in spite of repeated offers of services to the Afghan government and representations to the
government of the USSR, the ICRC has only on two occasions – during brief missions in 1980 and 1982 –
been authorized to act inside Afghanistan. Consequently, the ICRC has to date been able to carry out very few
of the assistance and protection activities urgently needed by the numerous victims of the conflict on Afghan
territory.

Due to the serious consequences of the situation in Afghanistan, the ICRC decided in 1980 to undertake
protection and assistance activities in Pakistan. It opened two surgical hospitals for Afghan war wounded,
the first in Peshawar, the second, in July 1983, in Quetta. In addition, being deeply concerned by the plight of
persons captured by the Afghan opposition movements and by information to the effect that several such
persons had been executed, the ICRC tried to find a way of protecting the lives of both Afghan and Soviet
captured persons.

Negotiations carried out by the ICRC, with successively, the USSR, the Afghan opposition movement,
Pakistan and Switzerland led to partial success. The parties agreed to the transfer and internment in a
neutral country of Soviet soldiers detained by the Afghan opposition movements, in application, by analogy,
of the Third Geneva Convention, relative to the treatment of prisoners of war.

On the basis of this agreement, the ICRC has had access to some of the Soviet prisoners in the hands of the
Afghan movements and has informed them, in the course of interviews without witness, of the possibility for
transfer by the ICRC to Switzerland, where they would spend two years under the responsibility and watch
of the Swiss government before returning to their country of origin.

The ICRC made this proposal to the Soviet prisoners on the basis of the principle worked out at the 1949
Diplomatic Conference and stipulated in the Geneva Conventions, i.e. that repatriation of a prisoner of war
signifies the return to a normal situation and is in the best interests of the prisoner. The above-mentioned
procedure therefore applies only to Soviet soldiers who consider themselves to be in a situation comparable
to that of a prisoner of war in enemy hands. Consequently, the entire operation is based on respect for the
principle according to which the ICRC never acts against the wishes of the person it is assisting.

To date, eleven Soviet soldiers have accepted the proposal. The first three were transferred to Switzerland on
May 28, 1982. Eight others arrived in August and October 1982, January and October 1983, and February
and April 1984. One of them escaped to the Federal Republic of Germany in July 1983.

The first three Soviet soldiers reach the end of their period of internment on May 27, 1984. In conformity with
the spirit of the provisions of international humanitarian law in this respect, the Swiss authorities, under
whose responsibility the soldiers are, have taken the measures necessary to repatriate those internees still
wishing to return to their country of origin.

The ICRC’s main concern since the beginning of the conflict has been the unacceptable restriction of its
humanitarian activities. In view of the situation, which has inflicted so much suffering on the Afghan
population for over four years, the ICRC expects all the parties to the conflict to enable it by all means
possible to protect and assist in all places all of the victims of that conflict, and thereby fully respect
International Humanitarian Law and its principles.”

Discussion

1. How would you qualify the conflict in Afghanistan? What consequences would the qualification of the
conflict have upon the parties involved in Afghanistan?
2. When soldiers are captured by the adverse party, are they automatically considered POWs? Is the
qualification of the conflict crucial in that regard? Why did the Soviet and Afghan authorities sign an
agreement stating that after a period of two years the captured soldiers should be released?
Theoretically, in an international armed conflict, would the parties need to have signed an agreement
on the release of POWs during the conflict? Is there a provision in IHL which states that POWs have to
be released at the end of hostilities? During the hostilities? (GC III, Arts 109 and 118)
3. Which Soviet soldiers consider themselves to be “in a situation comparable to that of prisoners of war”?
Would they not automatically be considered POWs simply by virtue of the fact that one may assert that
the situation is an international armed conflict? (GC III, Arts 2 and 4) Which Soviet soldiers do not
“consider themselves to be in a situation comparable to that of prisoners of war”? What is their legal
status? Which provisions of IHL would apply to those in the hands of the Afghan rebels? (GC III and IV,
Art. 4)
4. When can a POW be interned in a third country? (GC III, Arts 110(2) and 111)
5. Under which provisions can the ICRC take the initiative as an intermediary between the parties in the
Afghan armed conflict? (GC I-IV, Art. 3 and Arts 9/9/9/10 respectively; PI, Art. 81(1))
6. What is the status of the Soviet soldiers in Switzerland? Do they have to be treated as POWs? Does the
ICRC have the right to visit them? What is the justification for detaining captured combatants under
IHL? Under international human rights law? How would you, as a Swiss judge, rule on their request for
release? (GC III, Art. 4(B)(2))
7. Under IHL, does Switzerland have the right or perhaps even the obligation not to repatriate POWs who
do not wish to be repatriated?
8.
 a. At the end of the two-year period, the ICRC, in accordance with its standard practice, asked the
captured soldiers whether or not they wanted to go back to their country of origin. Is this
practice foreseen in IHL? On what premises can it be justified? (GC III, Art. 118)
b. In this case, could the two captured soldiers who refused to go back to the Soviet Union be
considered at that point as refugees seeking asylum?
9. Why do you think that the ICRC did not have access to victims in Afghanistan? Was the refusal to give
the ICRC access to Afghanistan a violation of IHL? What can the ICRC do to make the authorities grant
its request to act inside the country? To make the parties to the conflict comply with Convention III?
(GC III, Arts 3 and 126; GC IV, Arts 3 and 143)