“The motto of war is: ‘let the strong survive, let the weak die.’ The motto of peace is: ‘let the strong help the weak to survive’.“
Franklin D. Roosevelt, 1936
Our Commission acknowledged at the outset that we live in an age of increasing violence. We, therefore, set ourselves the task of understanding better the armed conflicts which abound in so many places in the world and of looking into measures which would help alleviate the suffering caused by them.
We believe that a stable peace can only be achieved through greater tolerance and trust among peoples and nations. These goals must be our ultimate objective. But until that time international organizations, States and the people themselves can take action to mitigate some of the effects of armed conflicts.
Besides the horror of increasingly lethal weapons of mass destruction, we were struck in particular by three specific aspects:
- Firstly, we were alarmed at the rise of expenditure by States on armed forces and weapons . This rise in militarization is affecting nearly all countries in the world to the detriment of social and economic programmes. Most serious of all has been the proliferation of weapons of mass destruction which now threaten not only the antagonists in a future conflict, but their neighbours and possibly all of us.
- Secondly, we were concerned at the spread of communal conflicts in various region s. Such conflicts arise from religious, economic, political and cultural tensions between peoples; they are often difficult to defuse and cause thousands of deaths every year.
- Thirdly, we believe that we cannot take comfort from the fact that a major world war has not occurred for more than 40 years . There have been dozens of serious and prolonged local wars causing millions of victims, among whom are an increasing number of civilians.
The process of militarization is global and unprecedented in history. A glance at the catalogues of the manufacturers of weapons shows that there are arms for all seasons, to any address and to suit any pocket. There is a hypermarket of destruction.
The armed forces receive the immediate benefits of scientific and technological developments which they often control. Military equipment is more and more powerful, sophisticated and precise.
The balance of terror may have enabled us to avoid a Third World War but it has largely contributed to an increase in arms production. The distinction between war and peace which was still evident up to the Second World War is increasingly blurred. Violence hovers always in the background, ready to erupt anytime or anywhere. In other words, security is purportedly maintained by States at the expense of individual security.
Arms sales have taken on such proportions that they have become a threat to the very security which they are supposed to preserve. Given their complexity as well as the extensive research and development possibilities, the maintenance of modern weapons is difficult: they become obsolete in a very short time. The possession of the most up-to-date military technology has become the most visible sign of the technological gap between the developed and the developing worlds. Moreover, the arms race has made developing countries much more dependent and the cost of arms has considerably increased Third World debt.
Nothing at all in the past can be compared to the contemporary build-up of destructive weapons. The danger is obvious and threatening. There are 93 countries and territories which, today, harbour foreign bases or other military installations. Twenty-five million men and women are part of the regular armed forces of the world ‘ s States and over 100 million people are employed in defence-related activities. The two superpowers today have armies six times larger than during the years prior to the Second World War.
Together, the countries of NATO and the Warsaw Pact are responsible for 80 per cent of arms expenditure, the most part being spent by the two superpowers. On the other hand, even though the Third World’s share is small, the rate of increase in its military spending is ominous: it has more than doubled during the last decade. Globally, military spending now amounts to some two million dollars a minute.
While disarmament must remain the general long-term goal, it seems to us that urgent attention needs to be paid to scaling down mass destruction weapons . Recognizing that questions of security and armaments are beyond the scope of our work, we felt, nonetheless, that the threat of total annihilation of human civilization posed by weapons of mass destruction must be emphasized in our Report.
Weapons of Mass Destruction
“The terror of the atom age is not the violence of the new power but the speed of man‘ s adjustment to it – the speed of his acceptance.” B. White. 1954
Addressing the particular ethical questions raised by weapons of mass destruction* is critical not just to resolving the overall armaments problem but, above all, to ensuring human survival and safeguarding human welfare and development. From a strictly humanitarian point of view, contemporary achievements in the fields of nuclear physics, microbiology and chemistry should be used exclusively for the benefit of humanity. Instead, colossal financial and human resources are being used up in an arms race that no one can win. Given the exponential increase in world military expenditure, the growing risks of nuclear proliferation, the spectre of nuclear terrorism and the militarization of the oceans and outer space, the threat to humankind is real. It calls for urgent collective action, inspired by vision and leadership, capable of reversing the present suicidal trends.
The possibility of global annihilation incalculably affects the emotional well-being of us all, particularly the young who are growing up today in an atmosphere of unrelenting apprehension. Myopic government policies are failing to consider the humanitarian needs of the future and focusing more on stockpiling weapons and increasing their lethal potential, than on identifying common-sense measures that can progressively lead to disarmament .
Despite tenacious efforts to promote peace and a growing awareness of the dangers and senselessness of the arms race, the stockpiling of weapons of mass destruction has continued unabated. This is largely due to the inner dynamic of the process, sustained by the military-industrial complex. In addition to finding ingenious methods of conversion of profit making military activities to peaceful purposes, a way forward would be to approach the dilemma from the humanitarian point of view which requires States collectively to place the vital interests of over 5 billion human-beings ahead of considerations of sovereign prerogatives and national security.
Lack of Mutual Understanding: Much of the impetus behind the nuclear arms race comes from the suspicion and fear that one’s opponent will achieve a technological breakthrough that will upset the tenuous nature of the existing balance of power. This is reinforced by the dedication of research scientists to technological advancement with no real regard for the humanitarian cost, and by a military-industrial complex with a vested commercial interest in maintaining it. National defence spending on nuclear weapons has soared, yet because of enforced secrecy, only a handful of people know and agree to the huge sums used for their development and deployment. This unprecedented situation has evolved through a series of ad-hoc decisions taken on grounds of alleged national security but made without reference to any overall global view of international security. Currently, despite the on-going negotiations between the superpowers, there is a lack of consensus, even among allies, on how to reduce the risks posed by mass destruction weapons. And because we lack a coherent international understanding, they continue to multiply.
Uselessness of Nuclear Weapons: The development of a workable framework for the management of the nuclear dilemma must begin with the recognition that the use of nuclear weapons can serve no valid or constructive military purpose. A catastrophic counter-attack, the slaughter of millions of noncombatants, widespread radiation, and the possibility of a nuclear winter would outweigh any gain that could be achieved. It follows that nuclear weapons ought never to be used. The only value of nuclear weapons is, therefore, to deter an opponent from using them. Even though there are inherent problems with the theory of nuclear deterrence, it is a relatively sane strategy as compared to the actual use of nuclear weapons. But surely no deterrent strategy can justify nuclear stockpiles capable of releasing more energy in a matter of seconds than the total used in all wars throughout history, and of killing every human-being many times over. A realistic step forward would be to move towards minimal nuclear deterrence.
Ethical Implications of Nuclear Deterrence: The aim of deterrence is to convince the enemy that the possible costs of aggression far outweigh any possible gain s, thus weakening the military option of a nuclear attack. At the same time, the very threat to use mass destruction weapons for any reason is contrary to ethics and recognized humanitarian norms. However, for some policy-makers and military strategists, moral reasoning is unrealistic, given the present world situation and the fact that the actions of States do not yield easily to absolutes. In ideal circumstances, policies geared to ensuring human survival and well-being would lead to a world free from mass destruction weapons. But this involves an elaborate system of common and comprehensive security – a challenging task from both military and political points of view.
It is argued by some in support of deterrence that there is a difference between threatening to do something and actually doing it. However, normally, inaction is immoral, then the intent to carry it out is also immoral. In order to work, deterrence must involve a credible threat. This means that in threatening to use nuclear weapons, at least some decision makers must appear to have the intention of carrying out that threat. However, it may be that those who bear responsibility for the decision to authorize the use of nuclear weapons have no intention of ever actually taking that decision. They conduct themselves as if nuclear weapons will under certain circumstances be used. But in the privacy of their own thoughts they know that it will serve no reasonable purpose. Nuclear deterrence thus rests on a bluff. People differ on whether bluffing is morally wrong or a moral necessity.
The most frightening aspect of nuclear deterrence is that it involves taking the risk of assuming that a nuclear power will be rational and exercise sound judgment. This is based on the recognition that the initial resort to nuclear arms will result in counter-measures too damaging to justify their use. The problem is that human-beings cannot be expected to be consistently rational. And in crisis situations, the level of rationality and sound judgment inevitably declines.
Some countries maintain that the fact there has been no world war since the use of the first atomic bombs against Japan is due largely to the existence of nuclear deterrence. The theory of nuclear deterrence may have helped prevent the use of nuclear weapons, but the past failure of other deterrents to keep peace for any extended length of time cannot be ignored. Moreover, it cannot be denied that continued reliance on nuclear deterrence, as presently perceived, presents awesome dangers to humankind’s survival.
Horizontal Proliferation: Today, many countries possess the potential of joining the nuclear club. At the same time, the existing nuclear powers have done little to limit their stockpiles, thus contravening the spirit of the Nuclear Non-Proliferation Treaty (NPT). The slowness of arms control negotiations and the absence of convincing tangible results weakens the moral authority that the nuclear weapon States have to curb the horizontal proliferation of nuclear weapons.
Accidental Nuclear War: The proliferation of nuclear weapons hangs over our heads like the sword of Damocles. But unlike the sword, the radiation from this weapon threatens not just ourselves but future generations as well. Nuclear proliferation would increase the likelihood of inadvertent nuclear war. It is now known that human error and technological accidents have been responsible for numerous false alarms which could have triggered an exchange of nuclear weapons. The time between a nuclear attack and a possible retaliation is now so reduced that a due process of rational decision-making is becoming increasingly difficult to envisage.
In human history, no weapon was ever invented which sooner or later was not used, either in defence or to gain victory. The fact that nuclear weapons have been used is, ironically, a source of hope, for we know the horror of their use. In any given historical period, the level of violence in armed conflicts has been directly dependent on the weapons available. The acquisition of nuclear weapons by new countries, which may not have or may fail to develop the same control mechanisms as those countries that have lived with nuclear weapons in their arsenals for decades, is cause for concern. Moreover, the miniaturization of nuclear weapons has made them more tempting to use, as have technological a9vances in their accuracy and power, which encourage a pre-emptive strike mentality.
Despite these drawbacks, the weight of evidence suggests that nuclear weapons will continue to influence national policies for some time to come. Nuclear weapons cannot be disinvented. As long as the knowledge of how to make these weapons exist s, they can be manufactured again. What can be done is to treat nuclear deterrence as an intermediary stage and establish minimum thresholds facilitating a gradual process of confidence-building. All of this can be tolerable if specific
measures are taken to eliminate the perceived need for nuclear weapons and steadily bring about a change in attitudes at the global level in terms of what constitutes international security and the unacceptabi lit y of relyin g forever on the deterrent role of mass destruction weapons .
In September 1987, the United States and the Soviet Union agreed in principle to sign a treaty to reduce substantially intermediate and short-range missiles.* This is a prom1smg beginning which we hope will be vigorously pursued and lead to more far-reaching results on the basis of identified points of convergence between the superpowers.
The Strategic Defence Initiative (SDI): It has hitherto been accepted that there can be no all-embracing defence against nuclear weapons. For that reason the Anti-Ballistic Missile (ABM) Treaty was signed and a measure of nuclear deterrence tolerated. A challenge to that position has now come with renewed interest in defensive systems against nuclear attack to be deployed in space.
The Strategic Defence Initiative (SDI), launched by the United States, has led the international community to be justifiably concerned with determining its status and implications for the future. An objective assessment of SDI requires that its attractions be weighed against the overall humanitarian consequences of its deployment.
SDI has been presented as a strategy for a more humane world. The possibility of rendering nuclear weapons impotent and obsolete is, of course, attractive. Unlike nuclear deterrence which is based on the threat of mutually assured destruction, a defence system based on ‘mutually assured survival’ is, in theory, difficult to criticize.
Effective SDI technology is seen by some as an insurance policy against compliance with any nuclear arms reductions ultimately agreed to among the superpowers. Colossal funding has been allocated for SDI and research is expected to yield new technologies in a myriad of civilian fields, including energy production, medicine, transportation and communications. History is replete with similar instances of fortuitous innovations. It is asserted that technological spinoffs which promise great gains for humanity are dependent upon heavy government funding for SDI.
No sane person can be against progress towards a safer and better world. The key issue is whether the chances of freeing the world from nuclear terror, as envisioned by SDI, are realistic enough to warrant the financial and political sacrifices that its deployment would entail.
The primary function of SDI technology is to intercept attacking missiles. This would require scientific breakthroughs in sensor and tracking devices to locate and follow thousands of missiles; computer programmes of unprecedented complexity to direct a response in a matter of seconds to a nuclear attack; and unborn generations of weapons that could transfer large amounts of energy almost instantaneously over great distances against small, rapidly moving targets. At any rate, SDI is based upon the assumption that detect ion , political decision-making, targeting and effective destruction would take place in a single minute time frame. Even if research could yield such technological developments, it is very unlikely that SDI can provide a foolproof impermeable shield. Even if one were to allow for only a 0.1 per cent error, it would mean in the case of a massive nuclear attack, the equivalent of several dozens of nuclear warheads. Undetected flaws in new, sophisticated technology are also inevitable. Moreover, deployment of SDI may not prove economically feasible. Projected costs run upwards of $700 billion – for a strategic system that cannot be tested under conditions that realistically simulate a full-scale nuclear attack. Consequently, the vulnerability of the general populace to a nuclear attack would always remain in question and a government could never have enough confidence in SDI to abandon its offensive nuclear arsenal.
Another complication is that SDI would be met with a variety of counter-measures. An obvious one would be to increase the number of nuclear warheads and aim them at major urban areas instead of missile silos to restore the threat of unacceptable retaliation. Saturation attacks employing thousands of warheads and decoys would make the interception of missiles during their mid-flight or terminal phase extremely difficult if not unmanageable. Reducing the duration of the boost phase of a missile and other evasive measures taken during the launch would pose further problems to SDI technology. An attack could also be directed against the vulnerable ground and space-based components of SDI to render its protective shield ineffective.
Even if SDI could intercept all land-based ballistic missiles, there is no viable way of defending civilian targets on a continent-wide basis against the broad variety of attacks that could be improvised to circumvent SDI. For example, as conceived at present, SDI does not guarantee protection against the use of bomber aircraft, cruise missiles, submarine launched ballistic missiles, a smuggled suitcase bomb or indeed against small low-flying aircraft.
In psychological terms, even a partially successful defence of the kind envisioned by SDI could give rise to the temptation of launching a disarming, pre-emptive strike without sufficient fear of retaliation. Consequently, its deployment could be perceived as an attempt to gain a first-strike capability. This could undermine the stability afforded by nuclear deterrence and give new momentum to the existing overwhelmingly expensive arms race. Since the inception of the nuclear arms race, the development of new weapons has always been met with a successful response. For example, anti-aircraft installations were deployed to defend against bombers; intercontinental ballistic missiles (ICBMs) were developed to penetrate this new defence; anti-ballistic missiles were developed to destroy ICBMs; and multiple independently targetable re-entry vehicles (MIRVs) were then deployed to overwhelm anti-ballistic missiles. Logically, the unrestrained pursuit of SDI is likely to provoke a costly response wasting exorbitant monetary and human resources which could be better used for development programmes and other more direct humanitarian imperatives. In economic terms, SDI research is absorbing an exorbitant amount of vital resources which could be constructively used to protect and promote human welfare. Although SDI research is expected to yield technological spinoffs which can enhance human welfare, it is more likely that discoveries having a positive effect on our well-being could be produced more cheaply and efficiently if they were pursued directly rather than as an unintended consequence of a vast military spending programme .
In legal terms, the deployment of SDI jeopardizes the viability of the Anti-Ballistic Missile (ABM) Treaty which prohibits the development, testing or deployment of sea-, air-, space- or mobile land-based ABM systems. It was signed after both sides came to recognize that attempts to develop and deploy a complete defence against nuclear weapons would jeopardize rather than enhance their security. This conclusion seems to be as valid today as it was 15 years ago.
Although certain aspects of SDI may be attractive to some policy-makers, technological, economic, political and legal difficulties abound to such an extent that its pursuit threatens rather than ensures the prospects for a more secure world. Owing to technological limits, the original vision of SDI as a perfect defence of the civilian population is already in dispute. Experts now talk of it as a defence to protect nuclear missiles, not the people. Recently, SDI has been called an insurance policy for the period once all US and Soviet offensive missiles have been dismantled. This new vision of SDI, while morally sound, distorts reality. If SDI serves only to aggravate global tensions, frustrate progress in arms control negotiations and generate an arms race in space, then its pursuit as a policy of insurance becomes illusory and dangerous.
Fallacy of a ‘Limited’ Nuclear War: A wiser way of working ourselves out of the dilemma posed by nuclear weapons, is to ensure that military strategies based on their use are gradually and systematically abandoned. It is widely acknowledged that there can be no winner in a nuclear war. At the same time, it is wrong and dangerous to assume that war can be contained following the initial use of nuclear weapons. Not all nuclear powers recognize the concept of a limited nuclear exchange, and some have made it known that any nuclear attack, however small, will be met with a massive nuclear response.
The very concept of a limited nuclear attack is misconceived. Tactical nuclear weapons which have been designed for limited use under battlefield conditions can cause uncontrollable radioactive fallout equivalent to that released by the bombs used against Hiroshima and Nagasaki. Even if such weapons were aimed only at military targets, the collateral damage to civilians would be intolerable. Attempts have been made to enhance the radiation levels of weapons in relation to their destructive effect with developments such as the neutron bomb. These developments dangerously blur the distinction between nuclear and conventional weapons. The predicted technical breakdown in communication which could follow the initial use of these battlefield nuclear weapons would blunt accurate judgments about the kind of attack the enemy has launched, and thus increase the probability of a massive response.
Reduction of Nuclear Arsenals: A series of confidence-building measures are necessary in order to free us from the instability of the present global situation. Large reductions should be made without delay in nuclear weapons. This can be done without jeopardizing national security. Existing nuclear arsenals already consist of some 50,000 warheads when as few as 100 weapons on each side, 0.4 per cent of the weapons available, could annihilate all human-beings. Thus a much lower level than the present inventory of nuclear warheads could deter an attack and ensure that any violation of arms control agreements would not imperil deterrence against nuclear attack.
If progress can be made towards a conventional balance, it will be easier to make great reductions in ‘first-strike’ weapons. They are not essential for nuclear deterrence and only encourage the thinking which could unleash a nuclear preemptive strike. In view of the tremendous devastation which could be inflicted in response to a first strike, it must become unthinkable for any responsible leader to authorize such action. Yet because some political leaders fear the devastation to their country from even a conventional preemptive first strike, they have not been able to rule out in all circumstances a nuclear response. The danger of a use of nuclear weapons lurks where there is a perception of insecurity- a feeling that national frontiers cannot be protected by conventional means.
Balancing Conventional Forces: This would facilitate the reduction of nuclear arsenals and could accelerate mutual reductions of conventional arms. This is of the utmost importance given that they too can be used as weapons of mass destruction. It could also pave the way for nuclear powers who have not made a for nuclear weapons’ policy to do so. As a first step, nations which now rely on nuclear deterrence should plan on a ‘no-early-use strategy’ and start putting into place alternative arrangements to prevent any side from being overwhelmed by conventional forces, in the event a conflict arises. Through confidence building measures (CBMs) and a combination of negotiated nuclear force reductions and balancing conventional defences, it should be possible eventually to take the next step of declaring a ‘no first use’ commitment and stopping all military planning based on the first use of nuclear weapons.
Tactical Nuclear Weapons: At the same time tactical or battlefield nuclear weapons should be abandoned in theory and in practice. The use of battlefield nuclear weapons risks an unlimited nuclear weapon exchange. If they are not immediately eliminated, at least these weapons should be moved to less provocative locations. This would increase stability by eliminating the need to decide whether or not to use tactical nuclear weapons in the first hours following an attack, thus doing away with the ‘use or lose’ scenario.
The ABM and SALT treaties should be reaffirmed. This is necessary so as not to jeopardize the progress that has already been made. A new momentum to ensure a comprehensive nuclear test ban must be generated. The complete cessation of tests would signal that nuclear weapon States were curbing vertical proliferation, thus putting a psychological lid on a visible manifestation of the nuclear arms race. This would encourage more States to accede to the nuclear Non Proliferation Treaty and make it morally difficult for non-nuclear States to flout world opinion and conduct tests.
International Humanitarian Law: Although no explicit inter national law exists regarding the legality of mass destruction weapons, several humanitarian conventions support prohibiting their use. Different provisions of the St. Petersburg Declaration of 1868; The Hague Regulations on Land Warfare of 1899 and 1907; the Geneva Protocol of 1925; the Geneva Conventions of 1949; and the Additional Protocols of 1977 prohibit causing unnecessary and indiscriminate human suffering in war and protect non-combatants. Since the use of nuclear weapons always entails the release of poisonous radiation which is certain to afflict non-combatant civilians, it can be seen to violate these rules of humanitarian law. Moreover, since the use of nuclear weapons, however limited, would annihilate civilian populations, it would constitute a crime against humanity as confirmed and defined by the Nuremberg Principles of 1945 which forbid large-scale offences against human life.
Several United Nations resolutions adopted by a majority of the member states have condemned the use of nuclear weapons. Already in 1961, the UN General Assembly Resolution 1653 (XVI) provided that a State using nuclear weapons “is to be considered as violating the Charter of the UN, as acting contrary to the law of humanity, and as committing a crime against mankind and civilization.” This Resolution has since been reaffirmed.
The evidence in the field of law gives sufficient grounds for the assumption that the use of nuclear weapons is illegal. Not all national leaders recognize the extension of international law to nuclear weapons, preferring to rely on declarations of ‘no first use’. Certain nuclear powers which participated in drafting the 1977 Geneva Protocols stated that they did not interpret them as affecting the legality of nuclear weapons. The strictly legal aspect of nuclear weapons has therefore been formally avoided.
Need/or a New Sense of Responsibility: Major advances in arms control negotiations will require sweeping changes in the attitudes of all concerned parties. Nuclear weapon States must begin by acknowledging the fact that their security is not strengthened by attempts to achieve nuclear superiority. Indeed their security is more likely to be threatened by such a policy. There is a need for an international instrument dealing specifically with the illegality of using nuclear weapons. It would be unrealistic to expect, given the current state of world tensions, that a convention condemning the use of nuclear weapons would solve the nuclear dilemma. But it is possible to achieve a declaration concerning nuclear weapons and their proliferation. Formal declarations forbidding the early use of nuclear weapons and, above all, committing States to crisis control mechanisms, which establish fixed procedures for defusing tensions and for warning other States when tensions are growing, would be important steps towards global safety. The sense of international solidarity upon which global security depends may presently be weak, but it can be strengthened and built upon. A positive step would be to link acceptance of no early use by nuclear weapon States with more nations undertaking formal commitments to prevent the horizontal proliferation of nuclear weapons. Acceding to the Non-Proliferation Treaty; the creation of regional nuclear- weapon-free zones; independent declarations of policy against nuclear weapons would all contribute to bringing humanitarian considerations to the nuclear debate and could influence ongoing arms control negotiations. At the moment, there is not even any consistent pressure on the nuclear weapon States to conclude a no-first-use treaty, though a precedent for such an approach exists with the 1925 Geneva Protocol on Chemical Weapons. It should be an important humanitarian objective to generate such pressure.
The Tlatelolco Treaty prohibits the deployment of nuclear weapons in Latin America. The 1959 Antarctic Treaty prohibits the signatories from undertaking any military measures or nuclear explosions in Antarctica. Hopes for the establishment of nuclear-weapon-free zones in Africa, the Middle East, South Asia and the South Pacific are growing, not out of a crusading spirit, but because States have come to realize that the renunciation of nuclear weapons is in their self-interest as well as the interest of the region and the international community at large. By open declarations of this sort, even the smallest States can exercise a catalytic influence in building a consensus against nuclear weapons. Other efforts such as the Five Continent Initiative, taken by the leaders of six countries (Argentina, Greece, India, Mexico, Sweden and Tanzania) and their thinking as reflected in the 1985 New Delhi Declaration and subsequent statements; raise the consciousness of the international community about the risks posed by nuclear weapons and signal the unwillingness of vulnerable nations to remain passive in the face of the nuclear threat. There is a great deal that the general public can do to pressure governments to act responsibly. In the past few years, millions of people have awakened to the dangers of nuclear war and become involved in disarmament activities, building a network of support across national boundaries. There are many obstacles in the path to peace, but they can be overcome if we join together in defence of our right to survival.
For a Balanced and Controlled Disarmament: In order to succeed, progress towards nuclear disarmament will have to be balanced and controlled. There is an elusive balance between maintaining sufficient retaliatory forces without threatening an opponent’s security. It can, however, be achieved. The point is to move away from reliance on nuclear weapons without actually increasing the likelihood they will be used. Steps towards nuclear disarmament carry certain risks, but the failure to accept mutual restraints is likely to carry much greater risks.
Non-Nuclear Weapons of Mass Destruction: In the wake of attempts at nuclear disarmament, the international community must come to grips with another threat of mass destruction: biological and chemical weapons. With today’s sophisticated delivery systems, the destructive capacity of biological and chemical agents of warfare is comparable to that of nuclear weapons. Because these non-nuclear weapons of mass destruction are inexpensive and relatively easy to produce in large quantities, they represent a lethal but tempting option for all nations, large or small, to supplement their arsenals and threaten their adversaries.
The 1972 Biological Weapons (BW) Convention: This is a far reaching disarmament treaty drafted to exclude completely the possibility of biological agents in warfare. Over 100 nations, including all those belonging to the North Atlantic Treaty Organization (NATO) and the Warsaw Pact, have ratified this Convention which together with the Geneva Protocol of 1925 prohibits the development, production, stockpiling, possession and use of biological weapons. The Biological Weapons Convention does not, however, provide for mandatory on-site inspections to ensure compliance and only the Security Council of the United Nations (which is subject to a veto by a permanent member) has a clearly expressed right to initiate investigations into alleged breaches. At the time of the drafting of the Convention, experts discounted the serious military value of biological weapons because they were slow to take effect and hazardous to the user’s troops, civilian population and environment. Thus the omission of rigorous verification procedures to ensure compliance with the BW Convention did not seem to be problematic.
In recent years, however, developments in the fields of microbiology and biotechnology have raised the military usefulness of biological weapons, thus giving rise to increasing temptations to subvert the Convention. Although it is not clear whether any nation has clandestinely violated the BW Convention, allegations have been made and a climate of mistrust has emerged which threatens to undermine the authority of the Convention. Since mutual confidence is indispensable for the successful operation of the BW Convention, there is a need to dispel any uncertainties about compliance.
All Parties must be willing to clarify any situation which may give rise to doubts about compliance with the Convention: to exchange data on research centres and laboratories established for handling biological materials that pose a high risk; to provide information on all outbreaks of infectious diseases that deviate from the normal pattern; and to respond promptly to a request for clarification of a suspicious situation. At the same time, there should be a distinction between official sponsorship of accusations and unofficial allegations which destroy confidence in the Convention.
It is imperative for Parties to adhere to these informal measures in good faith. If co-operation is not forthcoming, the viability of the BW Convention may be irreparably jeopardized. Up to now, the Convention has been instrumental in eliminating the threat of biological weapons. We must ensure that this humanitarian instrument remains effective.
Chemical Weapons: As opposed to legal machinery which excludes the possibility of biological warfare, there is no effective international instrument to deal with the dangers posed by equally lethal chemical weapons. The Geneva Protocol on chemical weapons of 1925 does prohibit resort to chemical methods of warfare, but more than 40 States Parties, including all the permanent members of the Security Council, formally reserved the right to retaliate with chemical weapons against any State which did not respect the Protocol. Thus, for these States, the Protocol is only a ‘no-first-use’ treaty which does not prohibit the development, production and possession of chemical weapons. States have therefore legally been able to produce and stockpile enough chemical weapons to threaten the life of every human-being on earth.
Despite a renewed interest by governments in chemical weapons, no one doubts that the indiscriminate killing of civilians and the human misery which would follow their use is clearly antithetic to the core of humanitarian principles. Studies on the military use of nerve gas in Europe suggest that the ratio of non-combatant to combatant casualties could reach as high as 20 to 1. Chemical warfare is generally regarded as underhanded and contrary to a war-fighting ethos. Yet historically, the outcast status of new weapons is often short lived. After all, flame weapons, gunpowder and even the crossbow experienced considerable periods of military disfavour and moral disapproval before becoming assimilated into military strategies. There is an analogous danger that existing law against resort to chemical warfare will yield to military imperatives as stocks of chemical weapons multiply. This is why it is incumbent on the international community to take timely and effective measures, such as strengthening the Geneva Gas Protocol and elaborating a new comprehensive Convention.
Negotiations on a chemical disarmament convention began in 1968. However, the requisite political will has been lacking and progress towards its conclusion has been disappointingly slow. Agreement has been reached on most of the substantive areas of the proposed convention. Each State Party would undertake not to develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone. The problem is how to ensure compliance with these obligations.
Verification: Unilateral, unchecked declarations of compliance by governments will not suffice to provide the requisite confidence to conclude a chemical disarmament convention. Unlike land-based missiles which can be monitored from the skies, military chemical capabilities can easily be disguised behind civil industrial development. States have recognized the need for rigorous monitoring procedures and all prospective parties seem amenable to permanent on-site inspections to ensure that all stocks of chemical weapons are destroyed over a ten-year period. But no agreement has been reached on how to ensure compliance after chemical weapons stocks have been destroyed.
For the most part, States are not opposed to routine on-site inspections to ensure against the new production of chemical weapons. Scheduled inspections are not inherently threatening to governments and provide ample time for them to protect their chemical industry against a breach of industrial secrets. It is possible, however, that the actions of one State may give rise to concern on the part of others which cannot be resolved by routine inspections. In those circumstances, a right to demand a mandatory inspection within 48 hours has been called for to clarify and resolve matters which have caused doubts about treaty compliance. It is this pursuit of the ‘on-challenge’ verification procedure which collides with the notion of sovereignty that remains the last impediment to a conclusion of the convention. There is now a great need for a compromise which accommodates both a nation’s sovereign prerogatives and security interests.
A compromise proposal, submitted by the United Kingdom, provides for inspection on-challenge to resolve particular doubts concerning a State’s compliance with the Convention. This would be a procedure of last resort, required only in special cases and applied independently of routine inspection procedures. But because a State receiving a formal challenge may have legitimate security interests at stake, there would be a very limited right to refuse an inspection in some highly exceptional circumstances. In such· cases, the State being challenged would have the right to propose alternative measures which would provide sufficient information to clarify the matter. If these measures proved to be ineffective, further alternative measures would be needed until there was sufficient information to resolve the situation.
The proposal sufficiently protects state sovereignty and goes a long way towards reducing the possibility of a clandestine breach of the convention to a level which should be acceptable to all governments. It is encouraging that the Soviet Union has expressed its willingness to accept this proposal as a basis for a compromise solution once the contemplated procedures are more clearly defined. If all States can now muster the political will to eliminate the threat posed by chemical weapons, then international acceptance of a compromise proposal along these lines – for the safety of humankind – should prove possible.
In conclusion, we are of the view that even the most complex problems can be resolved through recourse to those basic human impulses which, although they are sometimes looked down upon by policy-makers, have helped humanity survive and thrive: mutual trust and faith in our common future. The confidence-building resources necessary to promote an international climate favouring disarmament are to be found within ourselves. What we feel is needed, above all, is a sense of urgency and responsibility – for individuals, governments and world leaders never to accept the status quo as being anything other than a dire threat to the survival of the human race. To re-establish global security on a humanitarian foundation, cemented by solidarity and a sense of common danger to humankind will require tenacity and an unshakeable sense of purpose. We believe that change is possible, if the pursuit of eliminating all weapons of mass destruction is accorded the highest international priority.
Communal conflicts, ranging from sullen resentment and sporadic riots to protracted violence and civil war, invariably reflect the troubled society in which they occur. The incidence of such conflicts is on the increase and their scale has risen to new levels of brutality where reason and humanitarian principles have fallen victim to aggression and revenge. Communal strife is responsible for hundreds of thousands of senseless deaths and for creating even greater numbers of orphans and homeless people. The destruction of property and disruption of the economy which ensues undermines prospects for progressive development, leaving millions with a feeling of helplessness . Few countries are free from tension rooted in conflicting community interests, yet this subject has, by and large, remained undocumented and undebated at the international level.
Although there are some common denominators, communal conflicts are frequently complex and arise from a range of specific causes which rule out general strategies for prevention. Inherent in every communal conflict are diverse combinations of social, economic, political, cultural, religious, linguistic and historical factors which are conducive to fostering deep-seated antagonisms. While cause-effect relationships are, on occasion, easily identifiable, the factors which provoke and perpetuate communal conflict are more often than not an interwoven mesh of real and perceived grievances and threats to a community’s status and identity. When specific grievances are not addressed because the means of doing so are limited or non-existent, tension mounts as frustration boils over to blur other issues.
Inequality is often cited as the key issue giving rise to communal conflict. Uneven development or relative deprivation in the form of structural discrimination in income and employment opportunities and limited access to health, housing and educational facilities which denies a group full acceptance into the larger society tend to intensify and politicize communal differences. Alienated and unable to redress their disadvantaged position through existing political structures, marginalized communities then turn to violence to vent their frustration. This in turn triggers a cycle of violent reprisals, leaving little room for dialogue and reconciliation. This phenomenon can occur in both poor and affluent societies, as shown by riots in such diverse settings as India and South Africa, Sri Lanka and the United Kingdom. In certain countries, population pressures on state resources may in the future stretch the resilience of political systems beyond their capacity to absorb more people and make the escalation of communal tensions almost inevitable.
While conventional wisdom holds that communal conflict is the product of economic inequalities, subjective conditions pertaining to prejudices, jealousies, prejudgments, stereotypes and other skewed attitudes also play a dominant role in producing strongly felt and emotionally charged antagonisms.
Recent years have seen the re-emergence of ethnicity as a strong social and political force which cannot be explained merely in terms of economic or relative deprivation. Members of a group bound together by cultural ties, history, language or ethnic origin often have their sense of group identity reinforced when confronted with any threat, real or perceived, to their communal autonomy. Without structures and mechanisms to deal with such threats, the situation becomes ripe for unabated violence.
Inter-communal hostility does not always lead to violence but there is an inherent risk of its doing so. Some States are based on fragile foundations incorporating divergent communities within artificial boundaries drawn by the former colonial powers. Lacking a real basis for cohesion or national unity, oppressed or disaffected groups often feel they have more in common with their ethnic or linguistic cousins across the border than they do with authorities in their own country. Increasingly, adversarial communities are aided and abetted by outside powers intent on aggravating internal disputes to their own advantage. This type of involvement can be an insurmountable obstacle to efforts to defuse communal tensions.
The State, theoretically created to safeguard the welfare of its communities, sometimes aggravates communal conflict by siding with one group against another or by pursuing policies detrimental to particular communities. Sometimes, state measures used to restore order after volatile situations have erupted are themselves instigators of further violence. Rather than easing tension and generating harmonious relations, repressive measures which deny fundamental human rights only serve to harden attitudes and perpetuate an ethos of fear and hostility which is passed on to new generations. Moreover, state funding for strengthening internal security forces often comes at the expense of economic and social developments which are essential prerequisites in bringing about peaceful change.
Given the respect accorded to state sovereignty with regard to jurisdiction over internal affairs, and the lack of adequate international machinery to mediate or defuse potentially explosive situations, countless victims of communal conflict have no effective means of recourse or access to external humanitarian assistance. Organizations such as the Inter national Committee of the Red Cross are well equipped to help victims but are unable to do so unless invited by the national authorities. For the most part, existing international institutions are well-placed to render assistance only when a conflict spills over into neighbouring countries, or produces refugees. Too often, the victims of communal conflict are dependent for humanitarian assistance on the government authorities which may be responsible for their adversity in the first place.
The international community cannot afford, for ethical or pragmatic reasons, to stand aside and watch volatile situations degenerate into uncontrolled communal violence. In addition to leaving human misery in its wake, which offends our notion of common humanity and solidarity, communal violence is a malignant destabilizing force undermining the social fabric. Every effort, therefore, must be made to ensure that humanitarian considerations prevail to defuse community tensions, mitigate the human consequences of uncontrolled violence and restore order in the bitter aftermath of communal clashes.
Humanitarian Strategies: The antagonisms which lead to communal conflict are not insurmountable impediments in the search for peaceful and equitable solutions. Different communities have found ways to defuse tension – even after periods of protracted conflict – and live together in a manner which allows them to interact and settle disagreements before they disrupt inter-communal harmony and degenerate into open violence. Many States have developed procedures which allow disaffected groups or individuals a legal means of recourse · if their rights are threatened or infringed. Both legislative measures which protect communities against discrimination and affirmative action programmes to correct disadvantaged positions have also proved effective in easing communal tensions. In some cases, however, more elaborate strategies are needed to prevent outbreaks of communal strife. Measures to forestall communal hostilities include removing linguistic barriers to facilitate access to education and employment opportunities as well as educating teachers who have no understanding of, or sympathy for, the customs and traditions of communities other than their own. Textbooks can be rewritten to rid them of defamatory communal content and to point out the value in diversity of different cultures. The media can be a decisive agent for communal harmony by reflecting all points of view and disseminating information on the aims, aspirations, cultures and needs of all communities. Sensationalism which can mould opinions and shape attitudes at variance with healthy inter-communal relations can be avoided.
Neutral, third-party mediation may also be necessary to help resolve the most obstinate communal conflicts. Mediation offers a chance for leaders of adversarial communities to accept concrete proposals tailored to specific needs after a meticulously integrated examination of the particular situation has been conducted. In States where the level of tension is such that local authorities are unable to carry out this task, the opportunity for mediation must be extended by the international community. Some conflicts are beyond easy reconciliation. In such cases, there is a need to delineate and make explicit humanitarian principles to restrain avoidable suffering and loss of life and property. Although any violent recourse to problem solving is morally repugnant, acceptance of a humanitarian code of conduct applicable to communal strife could serve to protect those posing no direct threat to a community’s interests. For example, children should never be a target of communal violence. Other principles might call for placing schools, hospitals, places of worship and localities indispensable for communal survival into zones of special protection. It may be far from a satisfactory solution, but national and international pressure to persuade community leaders to accept the application of humanitarian principles to their conflict with others is bound to mitigate some of the senseless violence.
The countless victims of communal conflict, in particular widows and orphans, have a desperate need for humanitarian assistance to alleviate their misery and prevent the complete breakdown of their families. There is presently no effective mechanism, either national or international, to provide assistance to the victims of communal conflict. Primary responsibility, of course, rests with the local government which has an obligation to compensate those citizens it has failed to protect. But in some situations, the government does not have the capacity or credibility to deal with the victims effectively. In these cases, there is a need for neutral humanitarian organizations to administer relief or for existing organizations to add this specific issue to their mandates or activities.
Conflicts occur at all levels of society: within families, communities, and nations, as well as between them. However, they need not tear apart the fabric of our societies if an overarching humanitarian approach is used to introduce sanity into volatile situations. The incidence and brutal effects of communal violence can be contained if governments and people join hands in good faith to ensure that humanitarian principles prevail in such situations.
We are of the opinion that governments which fail to protect fully the innocent victims of communal riots, must assume the responsibility of looking after them and compensating them, to the extent possible, for their losses. For this purpose, it would be appropriate if at the national level, special schemes are developed by governments for humanitarian assistance to victims of riots, in particular widows and children. As for non-governmental bodies, it is important to establish a network of local voluntary agencies specialized in programmes of community welfare, to take care of the victims, particularly children, on a long-term basis. The more affluent nongovernmental organizations from the developed countries have an important role to play in strengthening the local voluntary agencies to cope more adequately with the challenges they face. Where such local bodies do not exist, financial support and training should be provided from external humanitarian sources to establish them and help them through the initial period until they are self-sufficient. As a matter of principle, emergency and long-term assistance should be provided, wherever possible, through the local voluntary agencies. At the international level, it would be helpful if the United Nations, within the context of a strengthened and centralized humanitarian apparatus, would designate a department or an ombudsman to monitor communal riots and the damage they cause and to help governments and non-governmental agencies in a purely humanitarian and non-political manner to provide assistance to the victims of such riots.
Humanitarian Norms in Armed Conflicts
Since World War II, twenty million people are estimated to have been killed in local and regional armed conflicts. There have been some 150 such conflicts since 1945 and, except for 26 days of total peace, there has been an armed conflict going on somewhere in the world throughout this time. Worse still, the role of the armed forces is growing in an increasing number of countries. Although we have witnessed in recent years a certain erosion of authoritarianism, soldiers continue to play the role of policemen in a disturbingly high number of countries. It is estimated that some one billion people live in countries with regimes controlled by the armed forces. The number of military regimes has increased from 22 to 57 since 1960. Armed forces whose task originally was national defence against external threats, are increasingly involved in internal conflicts, playing the role of self-appointed guardians of ‘law and order’ within their national boundaries.
In addition to the demands made by strategies of national defence, arms dealers always have something to sell to rich and poor alike all over the world. The weak and inadequate legal and protective machinery has not kept up with the ever expanding destructive power. With the greater number of violations, protection needs have also increased but the means to satisfy them remain modest.
‘Armed peace’, ‘no war no peace’, ‘cold war’ and ‘war of nerves’ are all ill-defined notions combining aspects of war and peace. Violence is a constant threat. At times it is kept in check; at others it explodes, and can no longer be controlled. Since war does exist, what can be done apart from preventive efforts to try and limit its destructive effects? How can the suffering of the sick and wounded be mitigated? How can civilians and their property be protected? In short. is there a moderating element which could ‘humanize’ war? These are the questions which lie behind the emergence and development of humanitarian law. The evolution of strategies and methods used in modem-armed conflicts gave rise to an attempt to update existing humanitarian law and in particular the Geneva Conventions of 1949. This process culminated in the two Additional Protocols of 1977 relating to protection in international and internal armed conflicts. But many unclear areas and gaps remained after the Protocols were adopted. States were unwilling to accept any provisions liable to undermine their sovereignty.
Many tend to regard political and humanitarian concerns as irreconcilable. The existing protective machinery is complex. Each type of conflict now has its own hierarchically distinct protection system. The level of protection is very high in international armed conflicts, lower in non-international armed conflicts under Protocol II, lower still under the 1949 Conventions and virtually non-existent in situations of internal disturbances and tensions. The International Committee of the Red Cross (ICRC) does, however, initiate actions of assistance whenever possible and appropriate.
One of the main problems in conceptual terms is that there is no clear dividing line between various types of contemporary armed conflict which can exist side by side or follow one another. Unclear distinctions artificially maintained for political reasons do not make for an easy implementation of humanitarian law. Despite the progress achieved in the 1977 Protocols, there is still much to be done to devise a global humanitarian strategy ensuring equality to all suffering victims and adequate protection against the effects of violence.
The Protection of Civilians and Its Limits: Most of the casualties in contemporary armed conflicts are civilians, affected by massive bombing raids and the use of indiscriminate means of combat. They are also the prime targets of terrorist acts. During the First World War, 5 percent of casualties were civilians. Today the proportion has reached 75 per cent and even 90 per cent in cases such as Lebanon. Indeed, it now appears that during armed conflicts soldiers are less vulnerable than civilians.
The 1977 Protocols reinforced the protection of civilians in two ways: against the effects of hostilities and against excesses by the combatants. The Protocols represent a major attempt to integrate humanitarian norms and ensure worldwide protection. By restating and updating a number of well established basic principles which have now become part of customary law, the 1977 Protocols remind belligerents that they do not have an unlimited right as far as the choice of the methods and means of harming the enemy is concerned. They should not resort to methods which cause unnecessary harm. They must at all times distinguish between civilians and combatants and between civilian and military targets. Reprisals, the taking of hostages, attacks against installations such as nuclear plants and all means of warfare liable to cause damage to the natural environment are prohibited.
The principles governing the conduct of hostilities also have to be taken into account before using certain weapons and even before developing, acquiring or using a new weapon. Therefore humanitarian norms take precedence over military technology not only in war, but also in peacetime. A whole set of existing or potential weapons and means of combat are implicitly covered: nuclear, bacteriological and chemical weapons, geophysical and electronic warfare, radioactive devices, microwaves, infra sounds, laser weapons, etc. The use of long-range weapons leads to a computerized battlefield and the actual soldier plays an ever-smaller part. This in turn may give rise to counter measures such as electronic jamming which can only increase the indiscriminate character of the fighting.
These restrictions caused a number of powers to refuse to ratify Protocol I since they felt that the lawfulness of the use of certain weapons, in particular nuclear weapons, might be affected. The Protocol, however, does not specifically rule out the use of nuclear weapons and this could be regarded as a serious shortcoming in view of the ultimate threat they pose to humankind and the very existence of humanitarian law. Nonetheless, Protocol I incorporates the fundamental principles of humanitarian law and this raises important questions. Would the use of nuclear weapons prevent unnecessary harm and spare civilian populations? Would their use be consistent with the principles of humanity and the dictates of public conscience referred to in international conventions? The fact is that the nuclear problems remain the same as before 1977. All Protocol I can be said to have done is to reopen the debate. It is therefore somewhat contradictory to refuse to ratify the Protocol after previously ratifying the 1949 Geneva Conventions.
The 1977 Protocols improved the measures for the protection of particularly vulnerable groups such as refugees, stateless persons and children, an increasing number of whom are affected by all kinds of hostilities. In that respect, it is not admissible for children under the age of 15 to take a direct part in hostilities. This provision is particularly significant in the light of the alarming tendency to recruit children into the armed forces and send them to the front after they have been suitably indoctrinated.
One of the Protocols’ achievements was to lay down minimum guarantees for those affected by all types of armed conflicts. The individual is protected not only against a foreign enemy, but also against his or her own government. This is a clear step in the direction of protecting the individual against the misuse of state powers. But that protection, however minimal, is subject to one major condition: the existence of an armed conflict. It does not apply in peacetime or in situations of internal disturbances and tensions.
The Lack of Protection during Internal Disturbances and Tensions: International humanitarian norms are sometimes perceived as an infringement on state sovereignty and as an interference in domestic affairs. That is why, despite the adoption of Protocol II in 1977, the protection afforded in situations of internal conflict remains very limited.
In spelling out the concept of non-international armed conflicts, Protocol II restricts its use to conflicts of a certain intensity. It does not therefore cover situations beneath that threshold, namely, situations of internal disturbances and tensions. The restriction is particularly significant since those situations are nowadays the most frequent and widespread.
An internal disturbance is a situation where, in the absence of an armed conflict, the State uses force repressively to maintain law and order. The term internal tensions refers to a situation where, without internal disturbances, the State resorts to force preventively for the same purpose. There is no armed conflict, but the situation is serious and prolonged enough to prompt States to use force.
In practice, it is not easy to distinguish between disturbances and tensions, or indeed between internal disturbances and non-international armed conflicts. When does the maintenance of law and order become an armed conflict and vice versa? Who is to decide when a situation is serious enough for international rules of protection to come into operation? When faced with such situations, authorities impose a state of emergency throughout the territory or in the areas affected by the conflict. Excesses are frequent as is known only too well: mass arrests are carried out, people are abducted or are summarily executed, special tribunals are set up, basic civil rights suspended, prisoners tortured, etc. Every day in many countries in the world, basic human rights are violated under a state of emergency. The maintenance of law and order seldom ensures compliance with humanitarian standards.
A state of emergency is lawful under national and international law. What is not lawful are the excesses and violations it gives rise to. Very often, a state of emergency is used mainly to get rid of opponents or so-called subversive elements and to deny or restrict governmental responsibility.
In the present state of humanitarian law, there are no firm legal grounds for the International Committee of the Red Cross (ICRC) to intervene in situations of internal disturbances and tensions which involve not two sovereign States at the international level but a State and its own subjects at the internal level. So far, the ICRC has exercised ‘ad hoc protection’ mainly on the basis of its Statutes. Legally speaking, this is an unsatisfactory solution since the State is under no obligation to accept ICRC intervention.
The human rights instruments applicable in situations of internal disturbances and tensions are not adequate. Not only do they provide less protection than in the case of armed violence, they may also be restricted by the imposition of a state of emergency. The lack of humanitarian protection often contributes to a spiral of violence and a decline of the rule of law.
The Weakness of Institutional Means in the Face of Increasing Violations: The major challenge faced by humanitarian law is the great number of violations of existing rules. Attacks against cities and civilian populations, the taking of hostages, the use of chemical weapons and the ill-treatment of prisoners of war, all illustrate the decline of the rule of law and the frequent non observance of humanitarian norms.
Several factors account for this situation. In recent decades, armed conflicts have tended to last longer and become more radical. All kinds of extremist tendencies have emerged, animated by groups or communities who believe that they alone know what is right and who consequently are intolerant of other beliefs or views. Such radicalization often expresses itself in various forms of terrorism. In this context, it would be helpful, for example, to mobilize humanitarian principles on the basis of the concept of the greater good and, consequently, support those States that refuse to respond to blackmail (through such means as hostage-taking, hijacking or other means) on the ground that they will save the lives of more individuals in the longer term if they are ready to take risks in the shorter term. A further complication arises from the fact that most present-day conflicts are internal conflicts. The participants multiply and the power structures change at an ever-increasing pace. In the case of internal conflicts, for example, it is often difficult to determine who exactly is in command and who is responsible for applying or flaunting humanitarian principles.
The institutional and procedural framework to ensure compliance with humanitarian norms is largely dependent on the consent and political will of States. The protecting power system and investigation machinery have never worked satisfactorily. The effectiveness of the relevant provisions in the 1977 Protocols is dependent upon the good will of States. It is regrettable that the International Fact-Finding Commission, foreseen in the Geneva Conventions, has still not come into operation. So far only seven States have accepted its competence. In the end the ICRC alone assumes the role of assistance and certain control functions but it, too, has to contend with state objections based on sovereignty.
Many governments seem to take a rather relaxed view regarding compliance with humanitarian norms, as if by ratifying the Conventions they had been freed from all other obligations. But the most perfect of conventions will have little practical impact if it cannot rely on effective government support. By mid-1987, 165 States had adhered to the Geneva Conventions and their implementing and control machinery. But as soon as they are directly or indirectly involved in an armed conflict, most States qualify, interpret or simply ignore the rules of humanity, evoking state interests and sovereign prerogatives. Political considerations prevail over humanitarian requirements and humanitarian concerns are used to further political aims.
A Realistic Humanitarian Strategy: Concern over nonobservance of humanitarian norms does not mean that these norms do not exist but rather that they should enjoy greater authority. More than ever before, there is a need to reinforce and revitalize rules of humanity which are often blatantly disregarded. But it is clear that to have any effect, solutions must be realistic and take into account the international climate.
It is certainly not by adopting new sets of rules of humanitarian law that better compliance will be achieved. The rules exist already. Indeed, codification could even be said to have reached saturation point. What is lacking is simplicity, clarity and, above all, efficient and effective implementation. The challenge is to ensure the observance of the rules we already have.
There are, of course, deficiencies. Some may be regarded as technical: they concern, for instance, maritime war neutrality or the identification and marking of medical transport. Others which have already been mentioned are more serious, namely the failure to prohibit nuclear weapons and the lack of protection in situations of internal disturbances and tensions. But as a whole, humanitarian law is rather comprehensive and covers practically the whole field of armed conflicts.
A treaty prohibition of nuclear weapons is of course to be achieved not in the field of humanitarian law but in that of disarmament. Only negotiations between nuclear powers may yield substantial results. However, efforts in a less formal framework could have a bearing on disarmament negotiations. It does not seem easy, in the present context, to apply humanitarian rules in situations of internal disturbance and tension by a formal limitation of state sovereignty. However, it may be possible to ensure better protection in such situations by restating a set of fundamental rules of humanity in a flexible and simple manner.
Taking into account the difficulties being faced in the field of international humanitarian law and practice, we are of the view that the following general measures would be helpful:
A Clear and Concise Restatement of the Fundamental Rules of Humanity: A set of minimum rules combining fundamental principles of humanitarian law and human rights should be compiled to serve as a kind of code of conduct which States and state officials or soldiers would have to observe at all times. It would cover the following basic concepts:
The right to life; dignity of the human person; no unlimited choice of the means used to maintain law and order; prohibition of acts of terrorism and of indiscriminate violence; prohibition of torture and degrading treatment; respect for the injured and protection of medical action; prohibition of forced or involuntary disappearances; fundamental judicial guarantees; special protection of children; dissemination and teaching of these fundamental rules.
The complexity of humanitarian norms · and the lack of immediate clarity is often a cause of violation. Highlighting the basic principles of humanitarian law and isolating them from the mas s of procedural and implementing provisions would be very useful since it would make both the principles and potential violations clearly visible. It would also define more adequately the actual conduct to follow in situations of armed conflict.
The need for clarity could also be an encouragement to spell out, for instance in a declaration, the basic principles applicable not only in armed conflicts but in any related circumstances, including situations of internal disturbance and tension.
Such an effort at the international level would certainly not weaken, still less replace, existing law. The purpose is not to trade rules for principles, but rather to achieve and disseminate an overall but simple statement which would strengthen humanitarian consensus and remove conflict between political and humanitarian interests. It would be parallel and supplementary to the efforts made to encourage ratification and implementation of conventional norms.
Ratification of the 1977 Protocols: These two Protocols have not been as successful as had been expected in terms of the number and speed of state By May 1987, 67 States had become Parties to Protocol I, and 61 to Protocol II. Many Third World, neutral and Nordic European States have acceded to the Protocols but there have been few ratifications from other Western or Eastern European countries. Of the five permanent Members of the United Nations Security Council – all of them nuclear States- only the People’s Republic of China has ratified both Protocols.
Such reluctance is unjustified. In fact, the Protocols do not, as a whole, constitute new law. They merely update humanitarian law, in particular the four 1949 Conventions to which practically all States have acceded.
Protocol I, relating to international armed conflicts, updates the means and methods of combat and provides better protection of civilian populations by prohibiting attacks against them. The shadow of a prohibition of nuclear weapons can of course be seen behind Protocol I, and this explains the reluctance of nuclear powers-with the exception of China-to ratify it.
Another reason for the reluctance of governments to ratify Protocol I is the fact that wars of national liberation are assimilated to international conflicts and that it prohibits reprisals. However, on the subject of reprisals, all this Protocol does is to draw the logical conclusions from the recognized principle of protection of the civilian population.
Protocol II has also given rise to a number of misgivings. Several newly independent States fear that it might affect their sovereignty, in particular the right to choose their response to possible internal difficulties. But here again, there is nothing new compared to the situation prevailing before 1977. The only significant change is the greater protection of the civilian population and of persons deprived of liberty as well as the protection of medical services and personnel. Besides, Protocol II only covers internal conflicts of a certain intensity, and therefore does not extend to situations of internal disturbance and tension.
The concern expressed by a number of Third World countries which might face internal difficulties is unjustified. The Protocol cannot be invoked for the purpose of affecting a State’s sovereign right or the government’s responsibility to maintain or re-establish law and order, or to defend national unity and territorial integrity by all legitimate means. Care was also taken not to grant any status or privileged treatment to captured combatants. There is therefore no reason for Third World States to evade ratification.
International and regional organizations should encourage ratification of the 1977 Additional Protocols and ensure wider dissemination of humanitarian norms, as has been done in the field of human rights. Evoking the reasons briefly mentioned above, our Commission sent a detailed memorandum in 1985 to more than 110 governments urging them to ratify the 1977 Additional Protocols, as well as a reminder in 1987 on the occasion of the 10th anniversary of the adoption of the Protocols. A number of official replies, many of them favourable, have been received since then.
Better Observance of Humanitarian Norms: States have undertaken not only to observe humanitarian norms but also, more importantly, to ensure their implementation and, thus, in the face of serious breaches, to act individually or This kind of collective control could be effective if it were used more frequently. It is in the interest of States to combine political and humanitarian concerns. Far from being incompatible, they condition and complement one another.
As for the United Nations Organization, when armed conflicts cannot be avoided, it should also try to mitigate the suffering caused by them. Missions of ‘good offices’ by the Secretary-General or the setting up of commissions of inquiry could, for instance, help improve control of the implementation of humanitarian norms. Moreover, making the public aware of violations complements the strategy of humanitarian organizations, even though the latter have to avoid denunciations so as not to jeopardize their action in the field and lose access to the victims they seek to help.
More Vigilance During States of Emergency: The United Nations and human rights organizations can also ensure supplementary protection on the basis of human rights Conventions, especially in situations of internal conflict where humanitarian law has not yet been much developed, as well as in situations of internal disturbances and tensions where it does not apply at all. The effectiveness of human rights protection follows an opposite pattern in that it is high in peacetime and gradually dwindles in situations of war or ‘exceptional public danger’. It is precisely in situations where the protection of both humanitarian law and human rights is considerably reduced that extra vigilance is called
States where such situations do exist should therefore be ‘put under observation’. International organizations should draw up a list, to be constantly updated, of all countries imposing a state of emergency, with as many details as possible. They should also make known excesses which a state of emergency may give rise to.
Improving Public Awareness: Public opinion has proved an effective instrument in promoting human It is regrettable that violations of humanitarian law do not attract as much public interest as violations of human rights. In the field of humanitarian law, there are no reports of the kind published annually by certain human rights bodies. There are also far fewer bodies to publicize and denounce violations of humanitarian rules.
Present-day conflicts are won and lost partly through the media. The media therefore have a particular responsibility in informing the public and increasing its awareness. Unfortunately, sometimes relatively minor acts of violence attract more publicity than armed conflicts which claim tens of thousands of lives. Information should also be more thorough. While many atrocious pictures of dying victims are shown, not enough is said about root causes and often nothing at all about the suffering that could have been avoided or mitigated if humanitarian standards had been observed.
A greater effort should be made, in our view, to protect those who send back information from the battlefield, namely journalists engaged in dangerous professional missions. It is regrettable that, despite multiple efforts in recent years, they do not enjoy so far a sufficient guarantee protecting and facilitating their missions. We believe that, in addition to adequate international rules of conduct ensuring their protection, it might also be helpful to introduce a universally recognized symbol, like the Red Cross or Red Crescent arm band, to render their work easier and safer.