CYIL 2012

THE ACTIVITIES OF THE SIXTH COMMITTEE DURING THE 66 TH SESSION … where no other changes should be made. The 2007 proposal is acceptable for most of the EU Member States, Switzerland, Russia, South Africa, many Latin American States and others. The United States and the OIC have – for different reasons – neither rejected nor accepted this proposal. While the question of the relation between the IHL and the CCIT may look – at least at first sight – academic, it has practical consequences. This is particularly true for the fight of peoples “against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination”, which is covered by the IHL, namely by the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (hereinafter “Additional Protocol I”). 60 To keep this fight out of the scope of the CCIT is a key concern for the OIC. As Jordanian Legal Adviser and ILC member Mr. Mahmoud Hmoud stated, the OIC negotiators, when drafting their proposal, “had two goals in mind: to ensure that the Comprehensive Convention contains a legal statement that its provisions shall not infringe on the right to self-determination and to extend the exemption of application of the Convention to all situations of armed conflict, including foreign occupation”. 61 This position is well reflected in the OIC proposal of Article 3, paragraph 2 of the CCIT: “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”. 62 As a result of this provision, the CCIT would not apply on these non-State actors in the situation of an armed conflict or occupation, which triggers the rules applicable to international armed conflicts. 63 The possible consequences of the OIC proposal can be best explained by two hypothetical scenarios. In the first one, a member of a rebel group blows up a school bus full of children claiming to fight a foreign occupation in State A and, subsequently, escapes to State B. If this act was indeed committed under the circumstances of occupation (or an armed conflict) – which would probably be a contentious issue – the CCIT could not be invoked. This would not be a problem, however, as this act would be a war crime under IHL, specifically a grave breach of the Geneva Convention Relative to the Protection of Civilian Persons in Times of War of August 12, 1949 (hereinafter the “Geneva Convention IV”) and the Additional Protocol I. 64 State B could not, therefore, escape its obligation aut dedere aut judicare pursuant to the IHL, i.e., according to the Geneva Convention IV and Additional Protocol I. 65 Furthermore, the relevant 60 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (hereinafter “Additional Protocol I”), Art. 1 para. 4. 61 M. Hmoud, Negotiating the Draft Comprehensive Convention on International Terrorism, in: Journal of International Criminal Justice, 2006, Vol. 4, Issue 4 (pp. 1031-1043), p. 1036. 62 See Report of the Working Group, supra note 54, p. 19. 63 Common Art. 2 to the Geneva Conventions of 12 August 1949, Additional Protocol I, Art. 1 para. 4. 64 Geneva Convention Relative to the Protection of Civilian Persons in Times of War of August 12, 1949 (hereinafter the “Geneva Convention IV”), Art. 147, Additional Protocol I, Art. 85, para. 3(a). 65 Geneva Convention IV, Art. 146, Additional Protocol I, Art. 85, para. 1.

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