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International Review of the Red Cross, October 1966, Sixth Year

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International Review of the Red Cross, October 1966, Sixth Year 2 -NOV29 SIXTH YEAR - No. 61 lCTOBER C 196/i (V C EAR ED" .A --l l? 1 ~7- /-;) 0 GR&B10 b / (j f,J _ J --t/- - . I: ~ rL ~ International Review of the Red Cross + Inter arma carita. GENEVA 1966 INTERNATIONAL COMMITTEE OF THE RED CROSS FOUNDED IN 1863 INTERNATIONAL COMMITTEE OF THE RED CROSS SAMUEL A. GONARD, former Army Corps Commander, Professor at the Graduate Inst­ itute of International Studies, University of Geneva, President (memher since 1961) JACQUES CHENEVIERE, Hon. Doctor of Literature, Honorary Vice-President (1919) MARTIN BODMER, Hon. Doctor of Philosophy (1940) LEOPOLD BOISSIER, Doctor of Laws, Honorary Professor at the University of Geneva, former Secretary-General of the Inter-Parliamentary Union (1946) PAUL RUEGGER, former Swiss Minister to Italy and the United Kingdom, Member of the Permanent Court of Arbitration (1948) RODOLFO OLGIATI, Hon. Doctor of Medicine, former Director of tbe Don Suisse (1949) MARGUERITE GAUTIER·VAN BERCHEM, former Head of Section, Central Prisoner's of War Agency (1951) FREDERIC SIORDET, Lawyer, Counsellor of the International Co=ittee of the Red Cross from 1943 to 1951 (1951) GUILLAUME BORDIER, Certificated Engineer E.P.F., M.B.A. Harvard, Banker, Vice­ President (1955) ADOLPHE FRANCESCHETTI, Doctor of Medicine, Professor of clinical ophthalmology at Geneva University (1958) HANS BACHMANN, Doctor of Laws, Assistant Secretary-General to the Intemational Committee of the Red Cross from 1944 to 1946 (1958) JACQUES FREYMOND, Doctor of Literature, Director of tbe Graduate Institute of Intemational Studies, Professor at the University of Geneva, Vice-Presilknl (1959) DIETRICH SCHINDLER, Doctor of Laws, Professor at the University of Zurich (1961) HANS MEULI, Doctor of Medicine, Brigade Colonel, former Director of the Swiss Army Medical Service (1961) MARJORIE DUVILLARD, Directress of .. Le Bon Secours " Nursing School (1961) MAX PETITPIERRE, Doctor of Laws, former President of the Swiss Confederation (1961) ADOLPHE GRAEDEL, former member of the Swiss National Council, Secretary-General of the International Metal Workers Federation (1965) Honorary members Miss LUCIE ODIER, Honorary Vice-President; Messrs. FREDERIC BARBEY, CARL J. BURCKHARDT and PAUL CARRY, Miss SUZANNE FERRIERE, Messrs. EDOUARD da HALLER, PAUL LOGOZ, ALFREDO VANNOTTI, ADOLF VISCHER. Directorate: ROGER GALLOPIN, Doctor of Laws, Executive Director JEAN PICTET, Doctor of Laws, Director for General Mairs CLAUDE PILLOUD, Deputy Director for General Affairs INTERNATIONAL REVIEW OF THE RED CROSS SIXTH YEAR - No. 67 OCTOBER 1966 CONTENTS Page J. PICTET: The principles of international humanitarian Jaw (II) . 511 Towards a new statute for medical aviation. 534 * INTERNATIONAL COMMITTEE OF THE RED CROSS EXTERNAL ACTIVITIES Vietnam-Cambodia-Laos-Japan-The President of the JCRC in Czechoslovakia-Missions in Central Europe 540 * IN GENEVA Central Tracing Agency. 545 New ICN headquarters . 546 * IN THE RED CROSS WORLD The First Geneva Convention of 1864: a historic document (J. P.). 547 Bringing the Red Cross to Africa. 549 Great Britain . 551 Honduras. 551 Philippines (Dr T. Calasanz) 552 Singapore. 555 * MISCELLANEOUS International Council of Voluntary Agencies. 556 Child welfare problems in Africa. 557 * BOOKS AND REVIEWS * FRENCH EDITION OF THE REVIEW The French edition of this Review is issued every month under the title of Revue internationale de la Croix-Rouge. It is, in principle, identical with the English edition and may be obtained under the same conditions. * SUPPLEMENTS TO THE REVIEW * SPANISH Informe de actividad del Comite Internacional de la Cruz Roja GERMAN Einige Tatigkeiten des Internationalen Komitees vom Roten Kreuz im Jahre 1965. THE INTERNATIONAL REVIEW OF THE RED CROSS is published each month by the International Committee of the Red Cross 7, avenue de la Paix, 1211 Geneva I, Switzerland Postal Cheque No. 12.1767 Annual subscription: Sw. fro 25.- ($6) Single copies Sw. fro 2.50 ($0.60) Editor: J.-G. LOSSIER The International Committee of the Red Cross only assumes responsibility for material over its own signature. THE PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAWl by J. Pictet II III. THE PRINCIPLES Alongside the rules which constitute the enacting clauses of the international Conventions and which, in precise tenns, set forth the contractual obligations of States, there exist principles from which these rules derive. "Certain ideas formulated with deliberate imprecision occupy a privileged position in treaties which describe them as being creative elements of law ".2 Sometimes the Conventions expressly refer to these either in preambles or even in the main body of the text. Thus they speak of the "laws of humanity", "recognized custom" and of the " dictates of the public conscience ". One should mention the so-called Martens clause of the pre­ amble to the Hague Regulation: "populations and belligerents remain under the safeguard and influence of the principles ofthe law of nations, as they result from the usages established among civilized peoples ". In an article common to the Geneva Conven­ tions of 1949 it is stated: "Each Party to the conflict . shall ensure the detailed execution ofthe preceding Articles, and provide for unforeseen cases, in confortni,ty with the general principles ofthe present Convention ". And in another article, the Parties undertake 1 See International Review, September 1966. 2 Henri COURSIER, L'evolution du droit international humanitaire, Leyden, 1960. 511 INTERNATIONAL HUMANITARIAN LAW to disseminate the Conventions" so that the principles thereof may become known to the entire population ...", In international humanitarian law, as in every other juridical sphere, principles are of capital importance. They motivate the whole, enable the respective value of the facts to be appreciated and also offer solutions for unexpected cases. They contribute towards filling gaps in the law and help in their future development by indicating the path to be followed. As a summary they can be easily assimilated and remembered. In the field of law now under study, the principles represent the· rudiments of humanity, a minimum applicable at all times, in all places and circumstances which are valid even for States which may not be parties to the Conventions. Although based on written law, they are part of the custom of peoples from which none can dis­ engage himself. The Red Cross remains true to its mission by placing, in front of the positive rules formulated by the Conventions, the principles which preceded them and from which they originated. As Sophocles has said, "above the written laws, there are those which are unwritten ". The Geneva Conventions, by their article 3 common to them, stipulate that States shall apply certain rules in the case of conflict not of an international character. One paragraph in this article lays down, that " the parties to the conflict shall further endeavour to bring into force, by means of special agreements, all or part of the other provisions" of the Conventions. It is to be hoped that the principles of humanitarian law may serve as a basis for agreements of this kind, the conclusion of which would be extremely desirable. There is no doubt that certain of these go back to the distant past, but it is in modern times that they have assumed a written form and only from 1864 onwards have they had the character of multi­ lateral agreements. Such as we have formed them, they have been drawn entirely from positive law. However, because of their general character one would often seek in vain for wording in the con­ ventional texts. The principles of international humanitarian law have not, as far as we know, yet been the subject of any systematic declaration. It appears to us that one could reduce the substance of this law to a few very simple notions, about fifteen in all, closely linked and in 512 INTERNATIONAL HUMANITARIAN LAW logical sequence, each one of them being subdivided in turn into several principles of application. This we have attempted to do in a few lines and in simple form, following them up with briefcomments. 1. Fundamental principles The fundamental principle of humanitarian law is the result of a compromise between opposed notions: the principle ofhumanity and the principle of necessity. We have seen when studying the sources of humanitarian law, that humanity requires action always for man's good. On the other side, by the nature of things can be found a principle of necessity, namely the maintenance of public order legitimates the use of force; the state of war justifies resort to violence. PRINCIPLE OF HUMANITARIAN LAW Respect for the individual and his well-being shall be assured as far as it is compatible with public order and, in time of war, with military exigencies. From the very beginning of life, human beings opposed each other. In all ages, men have suffered under the sword and the yoke; the pages of history are filled with blood. Everywhere one sees massacres, torture, oppression. Why? When a comparative study is made of civilization, one finds that .the concept of life and the world often rests on a dualism, on the existence of two fundamental factors which face each other and between which human beings find themselves placed. In Europe, the man in the street at once thinks of the opposition between good and bad. But this is too simple and arbitrary an explanation. In the dualist concepts, the two elements can each have their own value and even join them. This dualism has its origin in the roots of human psychism. There is a striking passage to this effect in a letter written by Sigmund Freud to Albert Einstein, two men of genius: You are surprised that it is so easy to incite men to war and you assume that they have in them an active principle, an instinct of hatred and destruction all 513 INTERNATIONAL HUMANITARIAN LAW ready to welcome this form of excitement ... We admit that man's instincts are composed of two categories: the ones who want to preserve and unify, we call them" erotics ", and those who want to destroy and kill, whom we cover with the terms" aggressive impulse" or " destructive impulse ".
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