EXCERPTS FROM UNCHR REPORT ON FEB-9

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Subject: EXCERPTS FROM UNCHR REPORT ON FEB-93: BURMA AND GENEVA CONVENTION

/* Written Mon 5 Feb 6:00am 1996 by DRUNOO@xxxxxxxxxxxx in igc:reg.burma */
/* -----------------" UNCHR Report on Feb 1993 "------------------- */

Following is the excerpts from the report of Commission on Human Rights,
49th session on 17 February 1993, relating with the Geneva Convention.
With best regards, U Ne Oo.
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UNITED NATIONS
ECONOMIC AND SOCIAL COUNCIL
Distr. GENERAL
E/EN.4/1993/37
17 February 1993

COMMISSION ON HUMAN RIGHTS, Forty-ninth session, Agenda Item 12.

Report  on  the  situation of human rights in Myanmar, prepared by Mr. Yozo
Yokota, Special Rapporteur of the Commission on Human Rights, in accordance
with Commission resolution 1992/58.
 .........

Chapter (IV.), Section (A.) International Law
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Article 3 common to the Geneva Conventions of 1949 and Customary Law
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158. On 24 August 1992, the Union of Myanmar acceded  to  the  four  Geneva
Conventions  of  1949  for  the  protection  of  war  victims.  The  treaty
obligations undertaken by ratification are not retroactive  in  nature  and
may   not   be   applied  to  actions  that  allegedly  occurred  prior  to
ratification. Treaty obligations binding on Myanmar since ratification,  as
regards  conflicts  of  an internal nature, derive from common article 3 of
Geneva Conventions.

159.  In  addition  to  its  treaty  obligations,   Myanmar   was,   before
ratification  of  the  Geneva  Conventions, and continues to be, obliged to
respect the relevant rules of  international  customary  law,  particularly
those  concerning  the  "elementary considerations of humanity" in times of
armed conflict as well as in times of peace as expressed by the  principles
in common article 3.

160.  As  regards obligations in internal armed conflict, the International
Conference on Human Rights held in Tehran  in  1968  requested  the  United
Nations  Secretary-General,  "after  consultation  with  the  International
Committee of the Red Cross, to draw the attention of States Members of  the
United  Nations  to  the existing rules of international law on the subject
and to urge them to observe that in all armed  conflicts,  the  inhabitants
and  belligerants  are  protected in accordance with 'the principles of the
law of nations derived from the usages established among civilized peoples,
from the laws of humanity and the dictates of the public conscience'". This
clause, known as the Martens Clause, was included in the  preamble  to  The
Hague  Conventions  of 1899 and 1907 concerning the Laws and Customs of War
on Land and was then incorporated into the four Geneva conventions of  1949
(art.  63 of the first, art.62 of the second, art.142 of the third and art.
158 of the fourth Geneva Convention).

161. Three customary principles of human rights protection are incorporated
in the Martens Clause: (a) that the right of parties to  choose  the  means
and methods of warfare, i.e., the right of parties to a conflict to inflict
injury  on the enemy, is not unlimited; (b) that a distinction must be made
between persons participating in military operations and those belonging to
the civilian populations so that  the  latter  are  spared  to  the  extent
possible;  and  (c)  that  it  is  prohibited to launch attacks against the
civilian population as such.

162. The Martens Clause has acquired a customary character and thus applies
independently of participation in the treaties containing it. It  is  of  a
non-derogable  nature  and  applies  whether or not a state of war has been
declared or the state of war is recognized by a party to the  conflict.  In
1949,  the  International  Court  of  Justice,  in  the Corfu Channel case,
recognized the customary nature  of  these  humanitarian  requirements.  It
ruled  that  "elementary  considerations  of  humanity  ..."  belong to the
general and  well-recognized  principles  which  have  to  be  observed  in
peacetime  as  well  as in times of armed conflict (The Corfu Channel Case,
Merits, I.C.J. Reports 1949, p.22).

163. The International Court of Justice expanded upon this doctrine in  the
Barcelona Traction case of 1970, when it stated that "there are obligations
of a State towards the international community as a whole" (case concerning
the  Barcelona  Traction,  Light  and  Power Company Limited, second phase,
Judgment of 5 February 1970, I.C.J. Reports 1970, para.33). It went  on  to
state  thatthese  obligations  may  arise "... also from the principles and
rules concerning the basic human rights of the human person" some of  which
"have entered into the body of general law".

164.  As  concerns  the  applications  of  these principles in situation of
peace, the  International  Court  of  Justice  elaborated  upon  the  Corfu
doctrine in 1986 in the NIcaragua v. U.S.A. case when it held that "certain
general  and  well-recognized principles, namely: elementary considerations
of humanity, (are) even more exacting in peace than in war"  (NIcaragua  v.
U.S.A.,  Merits,  I.C.J.  Reports  1986, p. 114, paras. 215 and 218, citing
Corfu Channel, Merits, I.C.J. Reports 1949, p.220.

165. The fundamental guarantees contained in  common  article  3  are  thus
applicable in all situations pertaining in the Union of Myanmar:

        "(1)  Persons  taking  no active part in the hostilities, including
        members of armed forces who have laid down  their  arms  and  those
        placed  (hors de combat, underlined) by sickness, wounds, detention
        or any other cause, shall in all circumstances be treated humanely,
        without any adverse distinction founded on race,  colour,  religion
        or faith, sex, birth or wealth, or any other similar criteria.

        "To this end, the following acts are and shall remain prohibited at
        any   time  and  in  any  place  whatsoever  with  respect  to  the
        above-mentioned persons:

                "(a) Violence to life and person, in particular  murder  of
                all kinds, mutilation, cruel treatment and torture;

                "(b) Taking of hostages;

                "(c)   Outrages   upon  personal  dignity,  in  particular,
                humiliating and degrading treatment;

                "(d) The passing of  sentences  and  the  carrying  out  of
                executions   without  previous  judgment  pronounced  by  a
                regularly constituted court,  affording  all  the  judicial
                guarantees   which   are  recognized  as  indispensable  by
                civilized peoples.

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