Concluding Hostdities: Humanitarian Provisions in Cease-Fire Agreements

• Author: Major Vaughn A. Ary
• Pages: 03

1. 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 concludes with B discussion of IBEUBE regarding environmental damage caused by war. A third section will briefly discuss the law protecting private and cultural property. Each of these topm uill be anabred to determine the existing state of the law and the basis far including each subject m a cease-fire agreement

   1. Interest of the World m Promoting Znteinotmial Peace and StVUFZt?

      Wars are no longer fought in a vacuum With a global economy, even small regional conflicts can have an impact on the world's eco-nomic markets. More mportantly, they can trigger a larger war. a mass exodus of refugees, or otherwise threaten international peace and security Improvements in technology and the widespread sale of arms have increased the military and destructive capability of armed forces throughout the world In an effort ro curb violence and control conflicts, the Umted Nations has taken an ~ncreasmgly active role in peace-keeping and peace-enforcement mmmns These operations are conducted at great cost-both financially and in lives lost-and to be beneficial, they mud end in a peace chat hill antisf? the domestic interests of the parties to the conflict and the derire of the rorld commumty for a lasting peace

      An effective peace IE one that each government can live with and continue to receive the political support of its people Governments often have difficulty in concluding agreements that will receive majority support because the war, and the resolution of issuee raised in the peace process. ape emotional events that will affect them Societies for generations. Mthaugh both sides will con-sider var-10~~political terms disagreeable, properly including humamtanan provisions can soften the effect of controversial provi-sions and provide the basis for positive support for the agreement

      In Its role as the guardian of international peace and security, the United Nations has a responsibility to focus an the peace process at the eon~lu~ionof e v e ~ conflict to ensure that this process does not sow the seeds of future canflicte.2 In its statement of purposes and pnne~pler, the Umted Nations Charter (Charter) speafi- 'LI u CUBPER a ~ t

      1 pars I, sfatel that me at the purposes of the Pmred

      To mamtmn mternat~onal ~eace

      and E O C ~ T . ~

      and IO that end to take

      sallanl ldeffective collectiie meamre3 ior the preientmn and emo owl of threats to the peace and far the bupprermn of acts of spgreirion or other breaches afthe peace and to bring sbauf by peaceful means and .n con farmlf) rilh Lhe pnmplea ofjustice a7.d infernations1 ISY adjustment OT se!ilemerr of infernafi~nd dirpufer or sifufmni which might !*ad to B breach of mace

      cally provides that the United Nations 1s "to bring about by peaceful means, and in conformity with the principles ofjustice and interna. tianal law, adjustment or settlement of international disputes or Situations''3 This creates an obligation of the United Nations to ensurethat all settlements are concluded according to international law; the negotiation of peace ie no longer a private matter left to the dm cretion of the ad\,ersaries. It 1s a process that is conducted under the scrutiny of world public opinion and, to comply with the standards of international law, cease-fire agreements must include ce~-tam humanitarian provisions.

      Members of the United Nations must act in good faith to fulfill their obligations under the Charter and settle them "mternatianal disputes by peaceful means in such a manner that international peace and security, and justice, .we not endangered."' This places anadditional duty on member states to conclude cease-fire agreements in accordance with international law. The United Xatmns also has an obligation to "eneure that states which are not Members of the United Nations act in accordance with these Principles 60 far as

      may be necessary for the maintenance of international peace and security."5

      It also IS in the best interest of states to act in accordance with the standards of conduct that are generally accepted by the eommunity of nations This IS particularly true of nations who recently have been involved in an armed conflict and want to be viewed favorably by the world community. The proper use of humanitarian provisions in ceaae-fire agreements is one of the easiest ways for a nation to demonstrate its desire to comply with international standards and pursue an expeditious recovery and lasting peace.

   2. npes ofAgreenents Concluding Hosthtzes

      The importance of an agreement in concluding hostilities cannot be overemphasized. Just because customary international law obligation exists does not always mean that the parties will comply with it. If a treaty is silent on a subject, the mqonty view is that it

      1s must be construed in accordance with international law 6 However, if the parties want to clarify their obligations and ensure

      aid.id aTf 2. paras 2-3

      .id m 2. para 6iThe Paquette Habana, 176 US 077 (19001. but aee LTmted Stares v AlvareiMachain. 112 S Ct 2188!19921

      complmnee, they...