Documents of the meeting of Experts
(Geneva 27-29 October, 1998)
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EXPERT MEETING ON THE
4TH GENEVA CONVENTION
(GENEVA, 27-29 October 1998)
Ambassador Walter B. Gyger
Chairman of the meeting
Geneva, 27 October, 1998
Your Excellencies, distinguished Delegates and Colleagues, Ladies and Gentlemen,
It is my pleasure to welcome you on behalf of the Swiss authorities to this Expert Meeting on the 4th Geneva Convention of 1949. I see with satisfaction that in spite of the relatively short time at our disposal for the organisation of this meeting, a great number of us are now gathering to discuss the important questions on the agenda for the next three days. I would like to thank you for your readiness to come and make a contribution to the promotion of international humanitarian law and its better respect.
Ladies and Gentlemen,
Our responsibility in participating in this meeting is very clear to me. As representatives of the Contracting Parties to the 4th Geneva Convention, it is our task to look for means of solving the problems of application we encounter only too often, and to do so in the tradition of humanitarian meetings, that is, without polemic, without denunciations, without looking for guilty parties. We should have but one ambition: that of being able, ultimately, to provide the victims of armed conflicts, wherever they are, with better assistance and protection. Humanity and universality if I may borrow from the Movement of the Red Cross two of its main principles must therefore be the two keywords of this meeting.
Of course, as everyone here is aware, this meeting has to some extent its origins in the resolutions adopted in July and November 1997 and in March 1998 by the General Assembly of the United Nations during its tenth emergency special session and therefore the issue of the occupied Palestinian territories is of primary concern to a number of delegations present today. It is probably to be expected, as a consequence, that some of those delegations feel the need to express themselves on that issue. It is equally known, however, that this meeting shall not devote itself to any specific situation.
It must be underlined here that this meeting is not the result of any exclusively Swiss initiative but that it is the outcome of a lengthy process of consultations conducted since July 1997 with the Contracting Parties to the Geneva Conventions, to whom a package of measures has been submitted in July 1998 and who in a great number have pronounced themselves in favour of this package.
On the one hand, this package provided that Switzerland should invite representatives of Israel and of the Palestine Liberation Organisation to a meeting in camera and in the presence of representatives of the ICRC, in order to examine measures and mechanisms that could contribute to an effective application of the 4th Convention in the occupied Palestinian territories, including those whose occupation has not been recognised by the international community. This meeting in camera took place on 9-11 June of this year. The delegations that participated in that meeting also expressed inter alia their agreement with the Swiss package. A second similar meeting was scheduled for last week, but had to be postponed in view of the Wye Plantation summit. The Swiss authorities hope that it will take place in the near future and have sent a new invitation to this effect to the interested parties.
The package of measures provided, on the other hand, that the Depository should propose the convening of a meeting of experts to examine general problems of application regarding the 4th Convention in general and, in particular, in occupied territories. The present meeting has now been convened, on the basis of the support expressed by the States Parties and of the agreement of the organisations more particularly concerned.
Several delegations have expressed diverging views regarding the understanding of whether this meeting constitutes a preliminary step to the conference recommended in Paragraph 3 of resolution ES-10/5 of the General Assembly. In this context, I want to underline that the Swiss authorities have convened this meeting, as I already referred to, as an element of a package of measures, after consultation and bearing in mind the message conveyed to the Contracting Parties to the IVth Geneva Convention by the General Assembly. The Swiss authorities consider that this meeting should not in one way or another prejudice the positions of the Contracting Parties with regard to the implementation of resolution ES-10/5 or possible recommendations that may be formulated in future by the General Assembly of the United Nations. In this regard, the meeting is not the Depositorys final response to the resolutions adopted by the General Assembly. Indeed, it will be up to the Contracting Parties to evaluate the results and to consider the advisability and modalities of possible subsequent action.
Ladies and Gentlemen,
As Switzerlands invitation to the Contracting Parties and observers specifies, this meeting is a meeting of experts which is of a general and informal nature. In this regard, let me dwell for a few moments on the general principles that will govern our debates. These principles were mentioned in the invitation you have received, and were the object of far-reaching preliminary consultations.
As I have just pointed out, this meeting does not concern itself with any specific situations. On the contrary and this is clearly expressed in our invitation the purpose is to analyse the problems encountered in the application of the 4th Convention in general and, in particular, in occupied territories to seek measures that may serve to overcome these problems and to review the means required to implement these measures. If it should become absolutely necessary, specific examples may be mentioned as long as they serve to illustrate the general problems encountered in the application of the Convention or indicate elements of possible solutions to these problems and are presented in a succinct manner and avoid deliberate confrontation. Consequently, I would like to urge you to refrain from statements of a political nature which bear on specific situations and I would like to thank you in advance for the support you will offer to the Chairman in that regard.
The informal nature of the meeting will imply essentially that no negotiations will be conducted, no decision will be made and no ballot will be cast.
In particular, the Chairmans report, which will be drafted under his sole responsibility, will not be submitted to the participants in the meeting for their approval. This report, which will therefore commit the Chair alone, will be sent to the Contracting Parties and the Secretary General of the United Nations, as well as to the observers to this meeting. Reflecting the view expressed in the debates, including any possible divergences, the report will not contain any reference to a specific situation or a particular regional context.
These general principles were described with precision in the invitation that you have received. As you will have noticed, these principles are inspired by the tradition of humanitarian meetings and conferences, particularly the concern of placing the humanitarian needs of the victims at the centre of the discussion, excluding any political considerations. For my part, I consider your presence here today to signify your acceptance of these terms, for which I would like to thank you.
Moreover, and before outlining the way in which the debates will be organised, I also have to make the following declarations.
In the face of the objections expressed by a certain number of Contracting Parties to the participation of the Federal Republic of Yugoslavia, the Belgrade authorities decided to relinquish their participation and called upon the Chair to circulate a document among the delegations present at this expert meeting, which will be done.
As far as Palestine is concerned, I have to specify that
The appellation Palestine is used in place of the designation Palestine Liberation Organisation and this appellation has no territorial connotation in the context of the present meeting.
These specifications are identical with those applied to the same issues on the occasion of the 25th International Conference of the Red Cross and the Red Crescent in 1995, and then again at the first Periodical Meeting on International Humanitarian law in January of this year. I am very pleased that the delegations concerned have once again displayed their good will and understanding, thus contributing to the preservation of the non-political character of this meeting.
However, a supplementary specification must be added here. The Swiss authorities were inspired by the meetings and conferences organised in the context of the Red Cross Movement as regards both the spirit and the terms of these gatherings. Even so, it must be underlined that this meeting is not a Red Cross meeting, just as it is not a UN meeting, either. As an event that is unique of its type, this expert meeting, in particular, is not part of the process of periodical meetings, although it is organised along the lines of the first of these meetings, according to a model that had been recommended at the time by the participating countries.
Ladies and Gentlemen,
I would now like to provide you with some indications as to the organisation of the work. As pointed out in the invitation note, our work will be concerned with the examination of the general problems encountered in the application of the 4th Convention, both in general terms and with regard to occupied territories, and with the search for possible solutions. In order to achieve this, we will proceed in three rounds of discussions, as this was outlined in the document entitled Work organisation that was sent to the delegations.
During the first stage, we will concentrate on questions concerning the protection of civilian populations in armed conflicts in general (apart from occupied territories). During the second stage, we will deal with questions concerning the protection of civilian populations in occupied territories. These two rounds should enable us to take stock of the problems and, as it were, to make a diagnosis of the application of the 4th Convention.
Finally, during the third stage, we will seek possible solutions to the general problems identified and seek ways in which these solutions could be best applied, both at a national level and at other levels.
At every stage, the Chair will provide a brief introduction to these topics. Moreover, a list of speakers is open for each round of discussion in the Chairs secretariat. Delegations wishing to do so are invited to register on it.
This way of organising the discussions, too, was the object of wide-ranging consultations, as is customary, and has found a great deal of support.
The discussion will be opened immediately after my remarks by the head of the delegation of the International Committee of the Red Cross, who will present to us the document that the ICRC has prepared in view of this meeting. I would like to take this opportunity to thank the ICRC for drafting this document, which will serve as the basis of our deliberations. As a guardian and promoter of international humanitarian law, the ICRC is also often the only institution capable of providing civilian populations affected by conflicts with support and protection. The role of the ICRC is therefore of major and unique significance in many places where it is called upon by victims. For this reason, I will turn to the ICRC at the end of each of our discussion rounds so that its representatives have the possibility to answer possible questions of a general order and acquaint us with their reflections and comments after our discussions.
Ladies and Gentlemen,
Allow me to conclude by once again underlining our responsibility towards the victims. It is for their benefit that we are meeting. It is they who call upon us to work, in good faith, for a better application of the 4th Convention. All the victims, wherever they are, must receive our attention. We know all too well that violations of international humanitarian law, yet real atrocities very often, are committed all over the world. The force of international humanitarian law lies in the simplicity of its essence -- human compassion and in its universality. It also lies in the scrupulous preservation of a distinction of what is humanitarian and what is political. I myself will do nothing and will allow nothing to be done during the coming three days that would prejudice the integrity of international human law and thus the interests of the victims. I am convinced that you all share my objective, and that with me, you will on the contrary make efforts to promote international human law in a manner that will afford the best possible protection to all those who are in need of it.
Before opening the discussion, I would briefly like to introduce to you the members of this panel, who will assist me during these three days:
to my left, Mr. Pierre de Cocatrix, he is a Counsellor to the Permanent Mission of Switzerland to the International organisations in Geneva; at his side, Mr. Manuel Sager, Counsellor, will assist me in the redaction of the Chairmans report;
to my right, Mr. Didier Chassot of the Federal Department of Foreign Affairs and Mr. Jean-François Paroz, Counsellor at the Permanent Observer Mission of Switzerland to the United Nations in New York.
finally, I am also assisted by Ambassador Gian Federico Pedotti, Ambassador of Switzerland in Amman.
Thank you very much indeed. I will now give the word to the representative of the ICRC.
STATEMENT OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS at the Meeting of Experts on General Problems concerning the 4th Geneva Convention
Relative to the Protection of Civilian Persons in Time of War
Geneva, 27 29 October 1998
Mr. Chairman, distinguished delegates and experts, fellow observers, ladies and gentlemen:
On behalf of the High Commissioner for Human Rights, I wish to express my thanks to the Government of Switzerland for inviting us to participate as observers to this meeting on the application of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War. At the outset, let me state that I believe that I believe that an international meeting of experts convened at any time to examine the general problems of applications and enforcement of the Convention can be useful and helpful, if it remains true to the terms and spirit of the Convention itself toward the protection of civilians in war and under occupation.
Resolution ES-10/5 adopted by the UN General Assembly on 17 March 1998, recommended the convening of a conference of the High Contracting Parties on measures to enforce the Fourth Geneva Convention in the Occupied Palestinian Territories and to ensure its respect in accordance with their obligations under Article 1.
The General Assembly resolution also recommended that the Government of Switzerland as the depository of the Convention undertake the necessary preparatory steps, including the convening of a meeting of experts. Thus, Mr. Chairman, the success of this meeting will be judged by the world community according to the extent to which it facilitates and informs the convening of an international conference of the High Contracting Parties of the Fourth Geneva Convention to address specifically the issue of application and enforcement in the Occupied Palestinian Territories. It is my sincere hope that such conference will be convened as soon as possible.
Full application of the Convention is essential to guarantee respect for fundamental human rights of civilian populations in times of war and occupation which is an issue of direct concern to the Office of the High Commissioner for Human Rights. As also highlighted by the ICRC in the background paper prepared for this meeting, recognition of the de jure application of the Conveis the first pre-requisite for any efforts aimed at the effective protection of civilians in these situations. In this connection, it has been confirmed time and time again in these situations. In this connection, it has been confirmed time and time again by all contracting parties to the Convention, except one, that the Convention does apply de jure to the Occupied Palestinian Territories. The General Assembly and the UN Commission on Human Rights have confirmed this in several recommendations and resolutions, calling upon the Occupying Power to respect its obligations under the Convention.
The ICRC paper describes in detail the rationale and many areas of applicability of the Convention in practical situations as well as the problems encountered in its application such as, for example, respect for the civilian population and preserving its autonomy; prohibition against population transfer, including the implantation of settlements and settlers both voluntary and involuntary; deportations and evacuations; prohibited destruction and confiscation of homes and property; changes in the local legal system; treatment and transfer of internees; and conditions of military and security operations.
These, Mr. Chairman, are among the relevant areas in which the Convention provides protection for civilians under occupation. These issues are also of relevance to the human rights protections established under international instruments such as the International Covenant of Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
Within the purview of the Office of the High Commissioner for Human Rights are the integrated and complementary tasks of supporting the UN human rights system, including the treaty monitoring bodies; monitoring human rights violations; and providing technical cooperation to assist governments to implement human rights. The OHCHR discharges its mandate in disputed and occupied territories, as well as in integral States. It should be noted for the purpose of this discussion that all UN treaty monitoring bodies to date have determined the applicability of Israels de jure obligations to fulfil its obligations to apply the human rights covenants and conventions in the Occupied Territories.
With regard to the Fourth Geneva Convention, the task ahead requires the High Contracting Parties, consistent with a good-faith initiative of the depository government, to cooperate in determining the appropriate means and measures available to respect and ensure respect for the Fourth Geneva Convention in all circumstances. To meet that challenge, legal and diplomatic mechanisms under the United Nations Charter are available, in addition to those created in connection within the Convention itself.
The ICRCs background paper refers to conventions-based mechanisms, such as the International Fact-finding Commission, under Article 90 of Additional Protocol I, to assist in the implementation task. UN Charter-based mechanisms for consideration by the High Contracting Parties include also the imposition of sanctions under Article 41 of UN Charter, as well as other collective action for the purpose of self-defense and maintaining regional peace and security. Specific measures under the Charter cover a range of actions, including, inter alia:
Engaging legal mechanisms through interstate claims at the International Court of Justice and through existing treaty mechanisms;
The GA requesting Advisory Opinions of the ICJ, with GA responses to follow;
Applying economic and other sanctions against the State Party responsible for the violations.
The UN human rights instruments, the Fourth Geneva Convention calls upon States Parties to implement measures at the national level as well, including legislation, regulations and prosecution of those individuals responsible for violations. And, at the international level, tribunals and trials of individuals for war crimes and crimes against humanity remain an option for serious consideration.
In conclusion, the mandate of the High Commissioner for Human Rights makes it incumbent to seek resolution and remedies for human rights violations whenever and wherever they occur, and to prevent further violations, if possible. This is consistent with the laudable intent behind GA resolutions ES-10/5 and the many preceding resolutions by the General Assembly, the Security Council the Commission on Human Rights, and other UN bodies. This is what this meeting should address. To do less is to disregard the GAs resolutions, undermine the Fourth Geneva Convention, and withdraw the protection of civilians that the war-weary community of nations created the Convention to provide.
Mr. Chairman, when the subject of law is human dignity itself, time is of the essence. Where grave breaches are at issue, and lives at stake, delay is tantamount to complicity. Respect for human rights and the application of humanitarian law cannot, and must never be deferred in the name of political expediency. In sum, if humanitarian law is to have any practical meaning for those it is intended to protect, then not only must the High Contracting Parties to the Convention embrace their moral and legal responsibility to ensure respect for its provisions, but they must do so without delay.
The Delegation of Palestine
Agenda Item 2
The Delegation of Palestine wishes to thank Switzerland for its remarkable efforts that have succeeded in focusing the attention of a large body of the community of High Contracting Parties to the Fourth Geneva Convention of 1949 on problems relating to the Conventions application.
On April 24th 1997, the United Nations General Assembly convened the Tenth Emergency Special Session under the principle Uniting for Peace in the context of a High Contracting Partys persistent refusal to respect, or accept the de jure applicability of, the Fourth Geneva Convention of 1949 in the territories it has occupied since 1967. The General Assembly subsequently adopted resolutions ES 10/2, ES 10/3, ES 10/4 and ES 10/5.
The themes of these resolutions center on the need for steps to help mobilise common article 1-based joint enforcement action in response to a specific case of serious and persistent violations, and on the need for the High Contracting Parties to confer on practical steps towards that end. These themes have given rise to a need to consider certain specific problems of a general nature concerning the application of the Convention in occupied territories. Our Delegation is deeply grateful to Switzerland for organising this meeting of experts in a manner that allows scope for their consideration.
Resolution ES 10/5 reiterates once again its recommendation that the High Contracting Parties to the Fourth Geneva Convention of 1949 convene a conference on measures to enforce the Convention in the Occupied Palestinian Territory, including Jerusalem, and to ensure its respect in accordance with common article 1. Further, ES-10/5 reiterates its recommendation to the Government of Switzerland, in its capacity as the depositary of the Geneva Conventions, to undertake the necessary preparatory steps, including the convening of a meeting of experts in order to follow up on the above-mentioned recommendation.
This meeting of experts is in fact the second element of a package of two meetings on the application of the Fourth Geneva Convention convened by Switzerland in response to the aforementioned General Assembly Resolution. Our Delegation regards both meetings as important preparatory steps towards the implementation of Resolution ES 10/5s first-mentioned recommendation.
The first element, an in camera meeting held with the Occupying Power and the representative of the Palestinian protected persons, in the presence of the International Committee of the Red Cross, was convened in July. In that meeting, significant differences emerged concerning the implementation of the Convention.
In this meeting, and in keeping with the terms of reference specified by Switzerland for this expert , and in light of the specific problems and recommendations addressed in General Assembly Resolution ES 10/5, which Switzerland has cited as the context that has led to the convening of this meeting, the Delegation of Palestine wishes to call attention to two inter-linked problems of a general nature that beg careful consideration:
the general problem posed by cases of serious violations where:
the de jure applicability of the Convention has been duly established at the public international level;
an Occupying Power that is a party to the Convention refuses to apply the Convention as law;
the mechanisms of enforcement internal to the Convention are therefore not operating, or are inadequate to prevent serious violations;
efforts to persuade the Occupying Power to respect the Convention have been unavailing; and
article 1-based enforcement measures by the High Contracting Parties, the Conventions ultimate guarantors, offer the sole remaining prospective remedy.
the likelihood that recalcitrant Occupying Powers, especially those engaged in the global violation of the Convention, will put forward tendentious and specious justifying theories that are in fact subversive of the Convention. Such developments compound the damage done to the convention by the extended failure of the High Contracting Parties to effectively curtail the pattern of actual violations.
We have heard some examples of such destructive theories emerge in this meeting.
The internationally discredited theory of the absent reversioner has again been put forward by the Delegation of Israel in its intervention of yesterday, notwithstanding the irrelevance of the existence of a displaced sovereign to the applicability of the Convention pursuant to the clear language of articles 2, 6 and 4.
A more dangerous theory has been put forward in this meeting, according to which the Convention, and presumably the backbone international human rights instruments, do not set non-derogable and absolute limits on the means that may be legitimately employed by states to meet their equally legitimate need to maintain military and public security. If individual state advocates of this theory wish to have the community of High Contracting Parties revisit such questions, they may, once having divested themselves of the status of an Occupying Power, invite the international community of states to consider enhancing the established code of protective standards so as to better realise the aim of humanitarian protection in an evolving world. Unilateral, and quite possibly opportunistic defection from clearly prescribed standards, especially on the part of an Occupying Power should, however, be recognised as intolerable.
Equally dangerous is the more cryptic version of such defection from non-selective adherence to the prescribed standards of humanitarian protection: the entertainment of de facto implementation of the Convention as a substitute for its de jure application. Toleration by the High Contracting Parties of partial and selective application of a de jure applicable international humanitarian Convention is, given the principle enshrined in common article 1, tantamount to their derogation from the Convention. Having said this, it is equally clear that, where the necessary conditions for establishing de jure applicability have been met, short-term de facto ameliorative efforts by the High Contracting Parties have a complementary place alongside diligent enforcement de jure.
The idea of the High Contracting Parties tolerating, and even sanctioning de facto application, and the term itself, is increasingly becoming a cryptic invitation, and a cryptic justification, for partial and selective application. We are at the brink of a steep slippery slope when torture by the agents of an Occupying Power can be justified as moderate physical pressure, and claimed to be made legitimate by novel security imperatives. When the Occupying Powers establishment of settlements in occupied territories, house demolitions and predatory confiscation of Protected Persons land and property is justified by security arguments and the notion of the absent reversioner. When the right of indigenous residents protected by the Convention to reside in their native community is vexed or revoked by an Occupying Power on grounds that a portion o the occupied territory has been rightfully annexed.
These happen to be some of the specific problems arising from Israels un-redressed systematic and persistent violation of the Convention suffered by the Palestinian population. However, the failure of the High Contracting Parties to remedy them over a thirty-year period of occupation is a general problem suffered by all people actually or potentially in need of the Conventions protection. It is a problem to making and keeping peace in an entire region. In light of the General Assembly Tenth Emergency Session resolutions, it is also a problem recognised as threatening the international communitys interest in preserving international peace and security.
The ultimate guarantors of the Convention, and its humanitarian protections are the High Contracting Parties. It is time that attention be turned from projects that seek to expansively develop the theory of universal humanitarian protection established in international law to the problem of how to make the essential protections already established work universally. All that stands between making the Convention work in the circumstances embodying the particular general problem which we hope this meeting will adequately address is an improved standard of diligence on the part of the High Contracting Parties themselves. Common article 1 must be better operationalised. The Delegation of Palestine thus finds itself in sympathy with its Israeli colleagues reference to the importance of functionality, although not in agreement with that colleagues notion of what functionality means with respect to a treaty like the Convention.
A retreat from de jure applicability, and full de jure application will not serve the Convention, or its aims. It will only degrade its protective capacity for all protected persons in all circumstances. The General Assembly resolutions taken in the tenth emergency session simply crystallise the challenge and call to mind the solemn undertakings unmet over three decades in the case of the Occupied Palestinian Territory and its people. The Palestinian people are not alone in being deprived of their right to the standard of humanitarian protection proclaimed in the Convention. It is time that the community of High Contracting Parties restores truth to their advertising.
For its part, the Palestinian delegation wishes to assure the delegations of the High Contracting Parties in attendance of the Palestine Liberation Organisations attachment to its responsibilities as the internationally-recognised representative of the Palestinian persons protected by the Convention as a consequence of Israels occupation in 1967 of the West Bank, including occupied Jerusalem, and the Gaza Strip. It wishes, moreover, to assure the delegations in attendance, and the honorable Chair of this meeting, of its keen awareness of the internationally-recognised territorial dimension of its responsibilities in this respect, covering the entire Palestinian population which resides, or resided, in all the territories occupied by Israel in 1967.
[In this regard, Mr. Chairman, our Delegation would like to announce that meetings at the Wye Plantation between the delegation of the Palestine Liberation Organisation led by President Arafat and the delegation of Israel led by Prime Minister Netanyahu, in the presence of the host, President Clinton and his senior colleagues, have resulted in a successful outcome, putting the Peace Process back on track. This has resulted in extending the territorial jurisdiction of the Palestinian Authority over a further 13 % of the West Bank.]
Mr. Chairman: Fundamental norms and standards governing the conduct of an Occupying Power have been established in international law to protect the civilian victims of occupation, ialia, by prohibiting the unilateral annexation of occupied territories and the transfer of nationals of the Occupying Power into occupied territories, by restricting the denial of protected persons right to reside in their native locales, and by restricting the introduction of changes in the occupied populations public life and habitat that are detrimental to their interest and well-being.
We say yet again: the High Contracting Parties are themselves the ultimate guarantors of the Convention. The process of resolving upon and coordinating individual and joint enforcement action among them, in accordance with common article 1, is an essential element of the Conventions operation. However, that process requires formal and practical specification. In making its recommendations, the General Assembly has both recognised the need for such enforcement by the High Contracting Parties in the Occupied Palestinian Territory, including Jerusalem, and recognised the need for an expert-level meeting to resolve upon a sound general approach to organising a process through which High Contracting Parties can consider and coordinate article 1-based action towards this particular end.
For these reasons our Delegation regards this expert meeting as an essential clarifying step towards preparing for a conference of High Contracting Parties. The general problem of how to mobilise and facilitate the consideration and coordination of Article 1-based enforcement action among the High Contracting Parties in general, and, by extension, in the particular case of the Occupied Palestinian Territories will, it is hoped, be addressed in the third agenda item discussions.
In keeping with the terms of reference specified by Switzerland for this expert meeting, and in light of the specific problems and recommendations addressed in General Assembly Resolution ES 10/5, which Switzerland has cited as the context which has led to the convening of this meeting, our Delegation will, in the context of those discussions, propose two general remedial measures, and practical ways in which those measures could be implemented.