CYIL 2012

PETR VÁLEK CYIL 3 ȍ2012Ȏ draws a clear line between the IHL and CCIT by an exclusion clause contained in paragraph 1. The idea of carving out the matters covered by the IHL from the scope of the CCIT is further elaborated in paragraph 2, which deals with the “activities of armed forces during an armed conflict”. 57 The 2002 proposal is acceptable for the EU Member States, the United States and others. It does not address, however, the concerns of the Member States of the Organization of the Islamic Cooperation (hereinafter the “OIC”, former Organization of the Islamic Conference), who came up with their proposal in 2002, 58 which will be further discussed below. The third one – presented by the current Coordinator, Mrs. Maria Telalian, in the Ad Hoc Committee in 2007 – is based on the 2002 proposal. It contains, however, some modifications in paragraph 4 and a new paragraph 5 in order to address some of the concerns of the OIC. 59 Together with a preambular paragraph taken from the last two adopted counter-terrorism conventions, it is also called the “overall package proposal”, as the Coordinator understands it to be a balanced, inter-connected text, 57 Id. , the 2002 proposal, pp. 18, 19: “1. Nothing in this Convention shall affect other rights, obligations and responsibilities of States, peoples and individuals under international law, in particular the purposes and principles of the Charter of the United Nations, and international humanitarian law. 2. The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention. 3. The activities undertaken by the military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention. 4. Nothing in this article condones or makes lawful otherwise unlawful acts, nor precludes prosecution under other laws.” 58 Id. , the OIC proposal, p. 19: “1. Nothing in this Convention shall affect other rights, obligations and responsibilities of States, peoples and individuals under international law, in particular the purposes and principles of the Charter of the United Nations, and international humanitarian law. 2. The activities of the parties during an armed conflict, including in situations of foreign occupation, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention. 3. The activities undertaken by the military forces of a State in the exercise of their official duties, inasmuch as they are in conformity with international law, are not governed by this Convention. 4. Nothing in this article condones or makes lawful otherwise unlawful acts, nor precludes prosecution under other laws.” 59 Id. , the 2007 proposal, p. 17: “1. Nothing in the present Convention shall affect other rights, obligations and responsibilities of States, peoples and individuals under international law, in particular the purposes and principles of the Charter of the United Nations, and international humanitarian law. 2. The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by the present Convention. 3. The activities undertaken by the military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by the present Convention. 4. Nothing in the present article condones or makes lawful otherwise unlawful acts, nor precludes prosecution under other laws; acts which would amount to an offence as defined in article 2 of the present Convention remain punishable under such laws. 5. The present Convention is without prejudice to the rules of international law applicable in armed conflict, in particular those rules applicable to acts lawful under international humanitarian law.” Proposed addition to article 3 (18) of the CCIT: “5. Nothing in this Convention makes acts unlawful which are governed by international humanitarian law and which are not unlawful under that law.”

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