Documentation concerning IVth Geneva Convention

DRAFT

DIPLOMATIC NOTE

The Swiss Federal Department of Foreign Affairs presents its compliments to the General Delegation of Palestine and has the honour to convey what follows:

On 17 March 1998, the General Assembly of the United Nations adopted resolution ES-10/5 by which the General Assembly addresses recommendations to the High Contracting parties to the Fourth Geneva Convention (ES-10/5, para 3) and to the Government of Switzerland, in its capacity as the depositary of the Convention (ES-10/5, para 4 to 6).

  1. Bearing in mind the political message conveyed by the General Assembly (ES-10/5, para 3 to 6),
  2. Taking into consideration the results of the consultations, which it has conducted in its capacity as the depositary of the Geneva Conventions with these Parties and later on in particular with the States and Organisations concerned following the adoption of resolutions ES-10/3 and ES-109/4, and
  3. Inspired by its often expressed desire to contribute to real improvements in the respect for humanitarian law on the ground, to avoid any politicization of international humanitarian law, and t6o support the peace process in the Middle East,

The Swiss Government has decided to propose a package of two measures which are intended to be mutually complementary.

On the one hand, Switzerland invites experts from Israel and the Palestine Liberation Organisation with presence of representatives of the International Committee of the Red Cross to a meeting in camera (which could be repeated if necessary). This meeting will be chaired by Switzerland and is aimed at examining measures and mechanisms which contribute to the effective application of the IV th Geneva Convention in the Occupied Palestinian Territories, including the territories annexed without recognition by the international community. Switzerland would inform the Contracting Parties and the Secretary General of the United Nations of the holding of this meeting; Switzerland would determine the form such information would take in consultation with the other participants.

The Swiss Government proposes that the suggested meeting take place from 9 to 11 June 1998 in Geneva. A draft agenda is enclosed in the appendix and forms an integral part of this note.

On the other hand, Switzerland will, in the first days of July, 1998, propose to the Parties to the IV th Geneva Convention a meeting of experts analogous to the first Periodical Meeting on International Humanitarian Law, which took place with the participation of a Palestinian delegation in Geneva from 19 to 23 January 1998. This meeting should proceed to an analysis of the general problems concerning the IV th Geneva Convention and seek possible remedies which would contribute to the respect for the Convention (in general, and in particular in occupied territories), in the tradition of the Geneva meeting on international humanitarian law. The discussions would be informal and reflected in a report by the chairman.

The Federal Department of Foreign Affairs would appreciate it if the General Delegation could communicate the composition of the Palestinian delegation not later than 4 June 1998.

An identical invitation has been sent to Israel on the same day as well as to the International Committee of the Red Cross.

Information concerning practical aspects of the 9-11 June meeting will be sent in due course.

The Federal Department of Foreign Affairs avails itself of this opportunity to renew to the General Delegation of Palestine the assurances of its highest consideration.

 

DRAFT AGENDA

  1. Opening remarks by the Chair
  2. Adoption of the agenda
  3. General statements by delegations
  4. Main issues with regard to the implementation of the IV GC
  5. Possible measures contributing to the improvement of the implementation of the    IV GC

    - unilateral measures

    - bilateral measures

    - multilateral measures

    6. Follow-up of the meeting

    7. Closing remarks

 

 

Rapport de la Présidence en version anglaise

Experts’ meeting hold in Geneva from 9 to 11 June 1998 on the application of the IV th Geneva Convention

Report by the Chair

Bearing in mind several Emergency Session Resolutions of the General Assembly of the United Nations, Switzerland, depository of the Geneva Conventions, convened an experts’ meeting near Geneva, from 9 to 11 June 1998, after having conducted extensive consultations with the High Contracting Parties and in particular with states and organisations concerned. This meeting was the first part of a package of two measures proposed by Switzerland to Israel and to the Palestine Liberation Organisation, as well as to the International Committee of the Red Cross.

The meeting chaired by Switzerland brought together Israeli and Palestinian representatives in the presence of the ICRC. The President of the Swiss Confederation, Flavio cotti, took the opportunity to meet the delegations and express the support of the Swiss government for the ongoing efforts with regard to this important issue.

Parties participating at the meeting held at Sarasin Villa agreed to hold their discussions in camera and to commonly issue a press release. Concluding remarks by the chair were also accepted by the Main issues regarding the applications of the IV th Geneva Convention have been raised. Significant conceptual differences have emerged concerning the implementation of the IV th Geneva Convention, its relation with the peace process in the Middle East and the security environment.

The discussions have been frank and constructive and have been held in a spirit of respect and understanding. Israeli and Palestinian representatives have agreed to follow the three principles proposed by Switzerland for meeting on this issue:

The Parties exchanged views on the feasibility of establishing mechanisms and taking concrete measures to implement the Fourth Geneva Convention. All delegations have reaffirmed that the Geneva Conventions are a core value of international law and have to be respected.

With a view to continuing the dialogue, the parties agreed to meet again to take into consideration ideas and suggestions that can foster respect of the fourth Geneva Convention. As a first step of a possible co-operation mechanism, Switzerland considers this meeting as encouraging and will continue to support this process.

The purpose of the present note is now to propose to the States Parties that the Swiss Government proceed as described and convene such a meeting, which would take place in principle from 27 to 29 October 1998 at Centre international de conférences de Genéve (CICG), 15, rue de Varembé, in Geneva.

The meeting should consider general problems regarding the IV th Geneva Convention – in general and, in particular, in occupied territories. The object and format of this meeting of experts would be analogous to that of the first Periodical Meeting on International Humanitarian Law which took place in Geneva from 19 to 23 January 1998. In the spirit of the Periodical Meetings, as they have been conceived by the 26th International Conference of the Red Cross and Red Crescent (1995) in its Resolution 1, the problems under examination “will not relate to any specific situation, but will be of a general character that can be of interest for States in general” (statement made by Switzerland at the 26th International Conference of the Red Cross and Red Crescent, p.117). One should recall that the objective of such meetings is to maintain and strengthen the dialogue between the High Contracting Parties to the Geneva Conventions on general problems regarding the application of international humanitarian law.

In accordance with the practice established by the first Periodical Meeting, the proposed meeting should be in the nature of an exchange of views that could be structured along the following lines:

In view of the informal character of the discussions, no rules of procedure would be applied; there would be no bureau and the meeting would be chaired by a representative of the Depositary.

The discussion would be reflected in a report by the chairman, to be transmitted to the States Parties and to the Secretary General of the United Nations.

In addition to the State Parties, other participants would be invited to the meeting.

The Embassy would appreciate if the … could communicate its views on the above-mentioned proposal until 15 August 1998.

The Swiss Embassy avails itself….

 

Proposal for a mechanism

I.PRINCIPLES

  1. The aim of the mechanism is the application of the Fourth Geneva Convention in the occupied Palestinian territories.

    2. The aim is to establish a mechanism which should improve the application of the IV Geneva Convention in concrete cases through co-operation of the parties concerned. The legitimate security interests of the parties concerned will be taken into account. The mechanism will not prejudge the question of the applicability of the Fourth Geneva Convention nor can it be interpreted as implying any derogation. The mechanism does not exclude direct contacts between the parties of the taking of unilateral measures.

    The mechanism will be established without prejudice to the traditional role and activities of the ICRC.

  2. The scope of application of the mechanism is limited to the IV Geneva Convention.

    3. The IV Geneva Convention should be in principle fully implemented: an improvement of the humanitarian situation on a step by step basis will be accepted as long as it does not hinder the full application of the IV Geneva Convention in the future. The Agreements concluded within the framework of the peace process do not limit the application of the IV Geneva Convention. The mechanism is not based on reciprocity.

  3. Switzerland offers its services as a facilitator and not as an arbitrator.

    4. Switzerland makes available to the parties the infrastructure as foreseen in the mechanism. Switzerland also examines the formal admissibility of the complaints, transmits the complaints and the answers to the complaints to the addresses, convenes and presides over the meetings. The general functioning of the mechanism is assessed regularly by Switzerland.

  4. The parties concerned co-operate in good faith within the mechanism in the light of the common goal described. Any decisions of the parties concerned are made by consensus.
  5. The existence as well as the general functioning of the mechanism are made public. The procedure dealing with a concrete case is confidential (the complaint, answer to the complaint, etc.).

    6. Switzerland is aware that a violation of the IV Geneva Convention and the fact that a complaint was filed can not be kept secret. However, the exact content of the complaint, the answer to the complaint as well as the further procedural steps are confidential.

  6. The solutions to the problems of application of the IV Geneva Convention are treated in principle on a general level. Exceptionally, single cases are admitted if they are of an important public interest.

    7. The individual cases are classified in categories (i.e. group 1: destruction of houses; group 2: discriminatory treatment of family members of arrested persons). This enables the parties to discuss the individual cases of a category together and to find a “general” solution for all the cases in the said category. The categories with an important number of cases will be in principle treated first.

  7. The mechanism treats current problems of application of the IV Geneva Convention.

    8. A criteria has to be determined by which “current” and “old” cases can be distinguished. “Current” cases are all cases which occur after the mechanism entered into effect as well as cases which occurred before the mechanism entered into effect but create a situation which continues to be illegal after the mechanism has become effective.

  8. The mechanism has also a preventive function.

    9. The measures which the Israelis intend to take for security reasons in the occupied territories should be preliminarily discussed with the Palestinians with a view to avoiding possible violations of the IV Geneva Convention.

  9. Delimitation and co-ordination with the “Joint Committees of Palestinians and Israelis.”

    10. Switzerland is aware of the fact that the Israelis and the Palestinians established several joint committees within the framework of the peace process and that the scope of activity of some of the joint committees and the mechanism might overlap. Switzerland proposes not to delimit the scope of application of the mechanism in order to avoid a conflict of competence. The mechanism can be launched unilaterally. The solution to a problem and its implementation can only be reached within the mechanism by consensus. In this spirit, Switzerland suggests to leave the choice to the parties, on a case by case basis, whether they would like to solve problems by using the mechanism and the help of Switzerland as a facilitator or not. Since other states are members of “The Continuing Committee for the Displaced Persons and other Matters of Common Concern,” Switzerland suggests to exclude the problem of the refugees of 1967 of the scope of application of the mechanism.

  1. Only the Palestinian Authorities are entitled to file complaints.

    2. Switzerland in its role as a facilitator will only have contact with the Palestinian and the Israeli authorities. Only complaints written on an official paper of, and signed by, the Palestinian authorities will be admitted.

  2. The role of the ICRC within the mechanism has to be defined in agreement with the ICRC.
    3.
  3. The mechanism has to be from the Swiss point of view “operational.” This means that it should be able to reach the determined goals in an efficient way.

    4. The structure and procedure of the mechanism must be designed in such a way that it can function efficiently. The infrastructure should be reasonable.

  4. The mechanism shall be tested during one year; thereafter a review will take place.

II. ELEMENTS OF A MODEL

  1. Basic Element

 

A. Element “Written Procedure: Ordinary Measure”

  1. The complaining party transmits its complaints to Switzerland (probably to the Embassy in Tel Aviv).
  2. Switzerlanregisters the complaints and confirms its receipt in writing.
  3. Switzerland examines the admissibility of the complaints by applying the following criteria:

4. Switzerland transmits the admissible complaints to the Israeli authorities and informs the complaining party thereof. The rejected complaints are sent back to the complaining party with a short motivation.

5. The Israeli authorities answer the complaint within one month (since the receipt of the complaint) to Switzerland. The Israeli authorities might act in three different ways:

        1. The Israeli authorities reject the complaint because the presentation of the facts does not comply with the reality (Behavior A).
        2. The Israeli authorities admit the presented facts but justify their measures with security or other reasons (Behavior B).
        3. The Israeli authorities are ready to co-operate to reach a solution regarding the problem described in the complaint (Behavior C)

6. Switzerland informs the Palestinian authorities and proceeds the following way:

        1. Israeli behavior A or B: Switzerland will not take immediately any further steps.
        2. Israeli behavior C: Switzerland convenes – if necessary – an ad-hoc meeting between the Israeli and Palestinian authorities on an expert level with a view to coordinating the implementation of the results achieved.

II. Optional Elements

A. Element “Urgent Measure”

B. Element “Preventive Measure”

II. Complimentary Elements

C. Element “Consultations”

D. Element “Senior Level”

     

    FEDERAL DEPARTMENT

    OF FOREIGN AFFAIRS-SWITZERLAND

    GENEVA, 11 JUNE 1998

    embargo:11.06.98-15:00

     

    Press release

     

    Experts' meeting on the application of the Fourth Geneva Convention

    An experts' meeting on the application of the Fourth Geneva Convention was held at Sarasin Villa, near Geneva, from 9 to 11 June 1998. The meeting chaired by Switzerland brought together Israeli and Palestinian representatives in the presence of the International Committee of the Red Cross. The President of the Swiss Confederation, Flavio Cotti, took the opportunity to meet the delegations and express the support of the Swiss government for the ongoing efforts with regard to this important issue.

    Bearing in mind several Emergency Session Resolutions of the General Assembly of the United Nations, Switzerland, depository of the Geneva Conventions, convened this meeting after having conducted extensive consultations with the High Contracting Parties and in particular with states and organisations concerned.

    This meeting was the first part of a package of two measures proposed by Switzerland. The second measure, an experts' meeting of the High Contracting Parties of the Geneva Conventions on problems of the Fourth Geneva Convention (in general, and in particular in occupied territories), will be proposed in the early days of July. It is expected to take place in early autumn 1998.

    Parties participating at the meeting held at Sarasin Villa agreed to hold their discussions in camera and to commonly issue the present press release.

    Main issues regarding the application of the IVth Geneva Convention have been raised. Significant conceptual differences have emerged concerning the implementation of the IVth Geneva Convention, its relation with the peace process in the Middle East and the security environment.

    The discussions have been frank and constructive and have been held in a spirit of respect and understanding. Israeli and Palestinian representatives have agreed to follow the three principles proposed by Switzerland for meetings on this issue:

The parties exchanged views on the feasibility of establishing mechanisms and taking concrete measures to implement the Fourth Geneva Convention. All delegations have reaffirmed that the Geneva Conventions are a core value of international law and have to be respected.

With a view to continuing the dialogue, the parties agreed to meet again to take into consideration ideas and suggestions that can foster respect of the Fourth Geneva Convention.

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