Concluding Hostdities: Humanitarian Provisions in Cease-Fire Agreements

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Concluding Hostdities: Humanitarian Provisions in Cease-Fire Agreements

I. Introduction

Regardless of the reasons for WET, each conflict 1s intended to reach an end. When it does, there are a number of issues that must he resolved Although customary international law may provide answers to some of these issues and guidance on others. the most effective peace 1s achieved rhrough an agreement between the parties to the conflict that clearly estahlishea the obligations of each party in accordance with the law

Customary international law provides a number of obligations that arise at the cancluamn of hostilities. but these obligations haie not alaays been followed. The ammosity that remains at the end of a conflict may tempt the prewhng party to neglect these duties and impose a farm of victor's justice by dictating the terms of the peace. A cease-fire agreement in which the parties agree, not only to cease hoatilmes. but also to fallow international lan in the conclusion of a conflict will substantially relieve the suffering caused hg war and speed the humamtanan, environmental, and economic recorev of the societies involved.

This article will show that international humamtarian law provides a framenork that mandates the inclusion of some provisions and limits the range of negotiation on other terms of cease-fire agreements These humanitarian prowsmns are based on legal

'Cmted Stares \lar.ne Corps Currently mimed PI Head. Law oi Arred Conflict Branch. International Law Diniion. Offlce of The Judge idrocare General his) 1984. Yonhueitern Oldahoms State Lmaera.tv a i Oklahoma. LL \I, 1995 George J\aai.ingron Department of the

Emiersity Former as Depufi Staff Judge idiocate D S Marine Force3

and G3 Plans Offcer 1st Force Service Suppan Group, kngdam of Saudi Arabia

1990.91 Thlr anicle 1s based on a wilten dmenatm that the author submittea to istiriy ~n pan the \laster of Laur demee requirements o i The National Lar Center oiThe George Washington Cnlierslf) The thesis UBI directed b) Ralpn GSremhsrdr 111. Profeiaor aiLaiv

obligations that are designed to alleviate the consequences of war and promote peace. The current legal justification and scape of these provisions will be examined in a generic context which applies to all agreements conciuding hostilities, regardless of the political objectives OF issuer involved in the conflict

Cease-fire agreements may address a wide range of topics. This article takes a different approach to ceaae.fire agreements by using two determinants for whether a provision must be included in the document Fret, the obligation must be sufficiently defined by international humanitarian law to constitute a legal duty of the parties to act in a certain fashion. Second, there IS an issue of timing. By definition, cease.fire agreements conclude hostilities If there is a legal obligation that specifically arises at the conclusion of hostilities. i.e. repatriation of prisoners of war (POWs), or there 1s a continual obligation or other legal duty that has a substantially greater chance of being suecesefully performed if action is taken immediately after the fighting ceases, 1 e., searching for mieeing persons or marking and removing minefields, then it must be included in the cease-fire agreement. Those issues that are pohtically charged or are not defined by B legal standard that clearly resalves the issue, such as war reparations, may await the peace treaty or poiitical resolution of the eanflict.1

This article begins with a general outline of the cease-fire process. This section argues that cease-fire agreements are nolonger a purely domestic matter between the state parties. It also describes the different types of agreements, both imposed and voluntarily agreed on, and outlines the basic terms to be included in them. The description of the recent cease-fire m the 1991 Gulf War is proiided as an example of recent state practice and as a frame of reference for the discussion of humamtanan provisions.

The second part of this article will take an evolutionary approach to a number of different cease-fire topics. The first section 18 devoted to cease.fire provisions relating to victims of war. It begms with the repatriation of prisoners of war, a well-established area that has undergone substantial development before reaching its current form. Provisions relating to mudians also are included in this seetion aiong wlth obiigations to search for, identify and recover the missing and dead, both combatants and emimns. The next sec-tion deals with the remnants of war and legal protections relating to

lThx amcle "he3 the term p~liflcal pmwrion to deaenhr those mbuea that are not rufic~enfl) defined by mtematmal 18%. to rhe p m f that they are reqwed to he included m the oeaeedre agreement, OT remain susceptible to extensive negotiation that could delay the mare-fire pmcesh However, If the panlea have negotmted a res-olution Lo fhece ~diuee the, may bo included m the cease-fire agreement.

the removal of unexploded ordnance, sea and land mines. and concl...

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